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Text and translation
English translation
4723. It was narrated from Sa’eed bin ‘Ubaid Aṭ-Ṭâ’î from Bushair bin Yasâr who said: “A man from among the Anşâr who was called Sahl bin Abî Hathmah told him that some of his people went to Khaibar, where they went their separate ways. Then they found one of their number slain. They said to those in whose land they
found him: 'You killed our companion!' They said: 'We did not kill him and we do not know who killed him.' They went to the Prophet of Allâh ﷺ and said: 'O Prophet of Allâh, we went to Khaibar and we found one of our number slain.' The Messenger of Allâh ﷺ said: 'Let the elders speak first.' And he said to them: 'Bring proof of the one whom you suspect killed him.' They said: 'We do not have any proof.' He said: 'Then let them swear an oath to you.' They said: 'We will not accept the oath of the Jews.' The Messenger of Allâh ﷺ did not want his blood to have been shed with no justice done, so he paid a Diyah of one hundred camels from the Sadaqah.' 'Amr bin Shu'aib differed with them. (Sahîh)
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Commentary
This narration is in accord with the general principle that the claimant or the plaintiff should furnish the evidence. If they fail to furnish any evidence, the defendants would be asked to take the oath. Some people have tried to reconcile stating that first of all the plaintiff shall be asked to produce the evidence. If there is no evidence, oaths shall be demanded from the heirs of the slain. If they refuse, then the oaths shall be taken from the defendants. In this manner also, all the narrations would conform to each other.
