Al Haqeeqa
92. Ibn Mas`ud said in explanation of the verse that a man’s sheep entered into another’s field (or vineyard) and damaged the crop. The matter was referred to Da’ud (asws). He judged that the sheep be given away to the owner of the field in compensation of his loss. Sulayman (asws) suggested instead that the shepherd should be asked to work on the farm until the damage was recovered. And, until the recovery, the flock of sheep be handed over to the owner of the orchard to look after and to make use of their milk, wool, or sell off the offspring. (In his good grace and wisdom, Da’ud accepted the suggestion even though, as Yusuf Ali put it, “it came from a little boy: Au.).
Accordingly, when Bara’ b. `Azib’s camel entered into an Ansari’s orchard by night and wrought some damage, the Prophet (saws) recited this verse and ordered that the damage be repaired. Then he added, “It is upon the owner of an orchard to see that stray cattle is kept out, and upon the owner of the cattle during the night to keep them away of orchards” (Ibn Jarir, Qurtubi).
Suhnun however has said, adds Qurtubi, that the Prophetic judgment varying for day and night is because the orchards in Madinah had boundary walls. Therefore, if there are no boundaries to orchards or fields, as in many parts of the world, the owner of the flock will be charged for damage whether it happens by day or by night. Imam Abu Hanifah however has ruled that if a shepherd is accompanying the flock, then the damages are payable, otherwise not. This is in view of the hadith in the Sahihayn that says, “Damage (caused) by animals do not entail compensation.” This is a much stronger report than that involving Bara’ (Alusi, Shafi`). For greater details one might profitably look into Qurtubi.
Further, it might be noticed that although Sulayman has been praised here, Da’ud was not censored (Ibn Jarir). It is possible, adds Zamakhshari, that the value of the flock was equal to the damage that was done to the crop and so Da’ud judged that they be given away in compensation. Thus, writes Thanwi, both the judgments were correct, hence Allah’s words, “and to each We gave Judgment and knowledge.”
In Asad’s words, “…the fact that Solomon’s judgment was more profound did not disprove the intrinsic justice of David’s original judgment or deprive it of its merit.”
In fact, even if one wished, he will find it hard to judge which judgment was better. Could the loss of the orchard owner be greater than the value of the sheep? Or, alternatively, when given charge of the sheep, could he have recovered all his losses by the time his orchard was restored to the original condition? And, when restored, would it have fetched the same price as last year’s crop? These are open questions and it is possible, as Mufti Shafi` has suggested, that Sulayman’s judgment was more of the nature of a “mutual agreement that also salvaged the relationship between the two parties, than an effort to render absolute justice” (Au.).
Report concerning Bara’ b. `Azib’s case is in Ahmad, Abu Da’ud and Ibn Majah, but may not be very strong (Ibn Kathir). Nevertheless, because of a few other supporting evidences, most jurists have accepted it as trustworthy and used it for legal purposes. As for Allah not censoring Da’ud, we also have a hadith in Bukhari which says that when a judge does his best and judges correctly, he gets double the reward. But when he does his best, yet commits an error, then he gets a single reward. And the essential point to be noted is, “when he (the judge) does his best, that is, to uncover the facts and dig out the truth” (Qurtubi).
Furthermore, close to the story of Sulayman above is another reported in Muslim (also in Musnad Ahmad – narrated by Abu Hurayrah: Ibn Kathir). The Prophet said, “Two women had an infant each. A wolf snatched away one. (Both claimed the remaining one). So they appealed to Da’ud. He judged in favor of the elder woman. Then they went to Sulayman. He said, ‘Get me a knife. I’ll divide the child between the two.’ At that one the younger woman cried out, ‘No. Don’t do that – may Allah show you mercy. Let the child be given to her.’ So, Sulayman judged in favor of the younger woman (Qurtubi).
The above is Bukhari’s version (Au.).
