Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Categories of killing and the diya of the 'aqila
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
The fuqaha have differed on the case of one who kills another with other than a sharp instrument, using a means whose use presumably causes death, such as one who strikes another with iron or wood, throws a wall or a large stone without an edge upon him, or smashes his head with a stone: is this an intentional killing that requires qisas (legal retaliation), or is it not, so that qisas does not apply?
The majority of the fuqaha, the Malikis, the Shafi'is and the Hanbalis, along with Abu Yusuf and Muhammad among the Hanafis, hold that it is an intentional killing that requires qisas, based on the saying of Allah the Most High:
"Whoever is killed wronged, then We have given his guardian authority."
Surah al-Isra, 33
And this one was killed wrongfully. And Allah the Most High has said:
"Legal retaliation is prescribed for you concerning the killed."
Surah al-Baqarah, 178
Anas, may Allah be pleased with him, narrated:
"A Jew killed a girl for ornaments she had, killing her with a stone. She was brought to the Prophet, peace and blessings of Allah be upon him, while a trace of life remained in her. He said: 'Did so-and-so kill you?' She shook her head no. He asked a second time, and she shook her head no. He asked her a third time, and she shook her head yes; the Prophet, peace and blessings of Allah be upon him, then killed him with two stones."
Reported by al-Bukhari (6485) and Muslim (1672)
Abu Hurayrah, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings of Allah be upon him, stood up and said:
"Whoever has a relative killed has the better of two options: either compensation (diyah) is paid to him, or retaliation is carried out."
Reported by al-Bukhari (112) and Muslim (1355)
It is also because such a means kills most of the time, so it resembles the sharp instrument (see Sharh Mushkil al-Athar 12/466 and 470, Bada'i' al-Sana'i' 7/234, al-Hidayah 4/158 and 159, al-Ikhtiyar 5/31, al-Jawharah al-Nayyirah 5/195 and 197, Mukhtasar al-Wiqayah 2/370, al-Ishraf ila Nukat Masa'il al-Khilaf 4/91, Sharh Mukhtasar Khalil 8/7, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/183 and 185, Tahbir al-Mukhtasar 5/227, commentary of al-Sawi on al-Sharh al-Saghir 10/43, al-Hawi al-Kabir 12/35 and 37, al-Muhadhdhab 2/176, al-Bayan 11/335 and 336, Sharh Sahih Muslim 11/157 and 158, Rawdat al-Talibin 6/133 and 134, al-Najm al-Wahhaj 8/330, Mughni al-Muhtaj 5/213, Tuhfat al-Muhtaj 9/292, Nihayat al-Muhtaj 7/289, al-Dibaj 4/9 and 10, al-Mughni 8/209, al-Kafi 4/12).
From 'Amr ibn Dinar, he heard Tawus relate from Ibn 'Abbas that 'Umar asked about the ruling of the Prophet, peace and blessings of Allah be upon him, concerning this. Hamal ibn Malik ibn al-Nabighah then stood and said:
"I was between two women; one struck the other with a tent pole and killed her and the fetus she carried. The Messenger of Allah, peace and blessings of Allah be upon him, ruled a ghurrah (a slave) for her fetus, and ordered that she be put to death in retaliation for her."
Authentic hadith, reported by Abu Dawud (4572), an-Nasa'i (4739), Ibn Majah (2641) and Ahmad (16775)
Abu 'Ubayd said: the misrah is one of the poles of the tent, that is, a large piece of wood planted in the middle of the tent.
It is also because it is an instrument ordinarily used to kill, so that retaliation may become due through its use, the principle being that of the sharp instrument; because the perpetrator deliberately killed, wrongfully, a person whose blood was equivalent to his own, as though he had burned him with fire; and because cancelling this rule would open the way to rushing into killing (see Sharh Mushkil al-Athar 12/466 and 470, Bada'i' al-Sana'i' 7/234, al-Hidayah 4/158 and 159, al-Ikhtiyar 5/31, al-Jawharah al-Nayyirah 5/195 and 197, Mukhtasar al-Wiqayah 2/370, al-Ishraf ila Nukat Masa'il al-Khilaf 4/91, Sharh Mukhtasar Khalil 8/7, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/183 and 185, Tahbir al-Mukhtasar 5/227, commentary of al-Sawi on al-Sharh al-Saghir 10/43, al-Hawi al-Kabir 12/35 and 37, al-Muhadhdhab 2/176, al-Bayan 11/335 and 336, Sharh Sahih Muslim 11/157 and 158, Rawdat al-Talibin 6/133 and 134, al-Najm al-Wahhaj 8/330, Mughni al-Muhtaj 5/213, Tuhfat al-Muhtaj 9/292, Nihayat al-Muhtaj 7/289, al-Dibaj 4/9 and 10, al-Mughni 8/209, al-Kafi 4/12).
Imam Abu Hanifah holds, for his part, that there is no retaliation in such a case: there is retaliation only if the perpetrator killed with a sharp instrument or with fire; there is no execution for a blow with blunt wood or the like; and two narrations are reported from him concerning blunt iron: the position of the school is that retaliation applies.
Indeed, the Prophet, peace and blessings of Allah be upon him, said:
"The victim of quasi-intentional accidental killing is the victim of the whip and the stick: one hundred camels, forty of them pregnant, carrying their young in their wombs."
Authentic hadith, reported by Abu Dawud (4547), an-Nasa'i (4794 and 4796), Ibn Majah (2627) and Ahmad (23540)
He thus called it "the deliberate accident" and made the diyah, rather than retaliation, due in it. Moreover, intent cannot be assessed in itself: it must be determined by its presumed indicator; yet it cannot be determined by what kills most of the time, since intent exists apart from that in a minor wound; it therefore had to be determined by the wound.
It is also because killing with an instrument not prepared for killing indicates the absence of intent: every action is indeed obtained with the instrument prepared for it; if it occurs with what is not prepared for it, that indicates the absence of intent. Now the blunt object and its like are not ordinarily prepared for killing: killing with it is therefore a sign of the absence of intent, and a suspicion of deliberateness remains within the intentionality. It is otherwise with killing committed with iron that has no edge, for iron is an instrument prepared for killing; Allah, Blessed and Most High, has said:
"And We sent down iron, in which is severe force."
Surah al-Hadid, 25
As for killing with a club, it is customary: killing with it therefore indicates intent, and the act is consummated as purely intentional killing (see Bada'i' al-Sana'i' 7/234, Sharh Mushkil al-Athar 12/466 and 470, al-Hidayah 4/158 and 159, al-Ikhtiyar 5/31, al-Jawharah al-Nayyirah 5/195 and 197, Mukhtasar al-Wiqayah 2/370).
...the arrival of the flood water upon him. If he was in a place where he knows that the flood water arrives at that time and he dies of it, it is purely intentional killing; and if that arrival was not known, either because it may or may not occur, or because it is not known at all, it is quasi-intentional killing (see al-Mughni 8/211, al-Kafi 4/14 and 15, al-Mubdi' 8/244 and 245, al-Insaf 9/457 and 458, Kashshaf al-Qina' 5/596 and 597).
If someone presents another with poisoned food or gives him poison to drink: if he presents it to a child or to an insane person saying "eat it" or "drink it", and the latter eats or drinks it and dies of it, qisas is due upon the one who presented the food, provided he knew that this poison usually kills; whether he told him that the food was poisoned or not.
And if he gives it to an adult to drink and the person dies, the case can only arise in two states:
If he coerces him to drink the poison by pouring it into his throat by force: if he acknowledges that it is a poison whose like usually kills, qisas is due upon him according to the majority of the fuqaha, the Malikis, the Shafi'is and the Hanbalis, for he killed him with a means that kills most of the time, just as if he had killed him with the sword.
The Hanafis say: the diyah is due upon him, and there is no qisas upon him.
And if he mixes the poison into food or drink and pours it into his throat, and the person dies of it, qisas is due according to the Malikis and the Hanbalis, based on what Abu Dawud related from Abu Salamah: "that the Messenger of Allah..."
3 - and deliberate-accidental killing ('amd al-khata'), or quasi-intentional killing; this is the view of the majority, contrary to the Malikis.
The Hanafis added two categories that fall under the ruling of accident:
4 - what is treated as accidental.
5 - and killing by cause.
The fuqaha have differed on the definition of intentional killing: is it intending the act and the person with what kills certainly or most of the time, or intending the act only?
The majority of the fuqaha, the Malikis, the Shafi'is and the Hanbalis, hold that intentional killing is to intend the act and the person with what kills most of the time, and to intend his death thereby.
The Malikis say: intentional killing is that whereby the destruction of life is intended, with an instrument that usually kills, even a blunt one, or by striking a fatal spot, such as squeezing the two testicles, violent pressure or strangulation, or locking someone in a house and depriving him of food until he dies of hunger (al-Mukhtasar al-Fiqhi 14/366, al-Taj wa-l-Iklil 5/222).
It is also said: the condition of the killing that requires qisas is that the killer intended the blow, that is, intended to deliver it, the intention to kill not being required outside the offense of the parent against the child. So if he intended to strike him with what usually kills and death ensued, qisas will apply; likewise if he intended to strike him with what does not usually kill and death ensued: qisas will also apply, even with a rod.
If he did not intend to strike him, and that is established either by evidence or by the admission of the victim, there is no retaliation against him: it is an accident, whose diyah is borne by the aqilah.
Whether he intended the very person struck, or intended to strike someone wrongfully and hit another: he will be put to death for it, and the view that "it is an accident" is weak.
But if he intended to strike someone he may lawfully strike and hit another, it is an accident, provided the blow was in play or for discipline; and our phrase "outside the offense of the parent against the child" excludes the offense of the father against his son: intending to strike him does not entail his execution as with others, for he was the cause of bringing the child from nonexistence into existence; he is therefore not put to death for him, unless he intended to take his life (Sharh Mukhtasar Khalil 8/7, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/184).
Al-Dasuqi, may Allah have mercy on him, said: know that killing takes several forms:
The first: that he did not intend to strike him, such as throwing at something or at a combatant harbi and hitting a Muslim: this is an accident by consensus, with the diyah and the expiation.
The second: that he intended the blow in the manner of play: it is an accident according to the view of Ibn al-Qasim and his narration in al-Mudawwanah, contrary to Matarraf and Ibn al-Majishun; the same applies if he thereby intended lawful discipline, that is, with an instrument fit for correction. But if the blow was for discipline in anger, the well-known position is that it is an intentional killing entailing qisas, except for the father and his like: no qisas, but an aggravated diyah.
The third: that he intended killing in the manner of ghilah (treacherous ambush): execution is then mandatory with no pardon, said Ibn Rushd in al-Muqaddimat (commentary of al-Dasuqi 4/242).
The Shafi'is say: purely intentional killing is to intend the act and the specific person with something that usually kills; it is not called intentional killing unless two elements are present in it:
The first: intending the person for the killing; if he did not intend his death, the act is not called intentional, like one who shoots an arrow aiming at game, hits a person and kills him.
The second: that the means of killing be of those that usually kill; if he struck him with a small stick or a small pebble away from a fatal spot and he died of that blow, this killing is not called intentional killing, for that means does not usually kill (Rawdat al-Talibin 6/131 and 132, al-Najm al-Wahhaj 8/328 and 329, Mughni al-Muhtaj 5/213 and 214, Tuhfat al-Muhtaj 10/286 and 290).
The Hanbalis say: the intentional killing to which retaliation is specific is that the perpetrator intends someone he knows to be a protected human being and kills him with a means whose death is presumed, sharp or not; there is no qisas if he did not intend the killing, or if he intended it with what does not usually kill (al-Mughni 8/210, Kashshaf al-Qina' 5/594, Sharh Muntaha al-Iradat 6/6).
The Hanafis hold that intentional killing is to deliberately strike a human being, in any part of his body, with an instrument that separates the parts of the body, such as a weapon or a blunt object, even of iron, even without intending to kill him; for intent is purpose, and it cannot be attributed to the act except through its proof, and its proof...
Quasi-intentional killing is also called "the deliberate accident" and "the accidental deliberateness", for deliberateness and accident meet in it: the perpetrator intended the act and erred as to the killing.
The fuqaha have given several definitions of quasi-intentional killing:
Quasi-intentional killing, according to Imam Abu Hanifah, may Allah have mercy on him, is to deliberately strike with what is neither a weapon nor what is treated like a weapon, but with something whose usual outcome is destruction, such as the fullers' pounder, the large stone, the big stick and the like: if he kills with that, it is quasi-intentional; likewise if he strikes him with a small stick, or a deliberate slap after which death follows, or a whip stroke after which death follows: it is quasi-intentional.
This killing was named "quasi-intentional", that is, an accident resembling deliberateness, because of the meaning of deliberateness it contains when one considers the perpetrator's intention to strike, and the meaning of accident it contains when one considers the absence of intention to kill; quasi-intentional killing is therefore the deliberate act with any instrument that was not designed for killing (al-Hidayah 4/158 and 159, al-'Inayah 15/122 and 123, al-Jawharah al-Nayyirah 5/196 and 197, al-Ta'rifat 165, al-Bahr al-Ra'iq 8/332).
Quasi-intentional killing, according to Imam Abu Yusuf, Muhammad, the Shafi'is and the Hanbalis, is to intend the blow with what does not usually kill, such as the whip, the small stick and the small stone, for it is with such instruments that discipline is intended; but if he strikes with an enormous stone or an enormous piece of wood, it is intentional killing according to them all, and quasi-intentional according to Abu Hanifah (same references: al-Hidayah 4/158 and 159, al-'Inayah 15/122 and 123, al-Jawharah al-Nayyirah 5/196 and 197, al-Ta'rifat 165, al-Bahr al-Ra'iq 8/332).
Imam al-Kasani, may Allah have mercy on him, said: as for quasi-intentional killing, it is of three types: some are acknowledged as quasi-intentional by all, and some are disputed.
What is acknowledged by all is to intend killing with a small stick, a small stone, a slap and the like of what is not usually destructive, such as the whip and the like, when one strikes once or twice without repeating the blows.
What is disputed is striking with the small whip while repeating the blows until death: this is quasi-intentional, without disagreement among our companions, may Allah have mercy on them...
And if he intends his death with what is predominantly destructive without being cutting or piercing, like the fullers' pounder, the large stone, the big stick and their like, it is quasi-intentional according to Abu Hanifah, may Allah be pleased with him, while according to the two companions and al-Shafi'i it is intentional killing. There is no quasi-intentional killing below human life: what is quasi-intentional with respect to life is intentional with respect to what is below it, for what is below life is not usually destroyed with one instrument rather than another: all instruments are therefore equal in indicating intent, and the act is purely intentional killing. One then looks at whether it was possible...
There is here a part on which the fuqaha agree that it is accidental killing. Imam Ibn al-Mundhir, may Allah have mercy on him, said: they agreed that accidental killing is to intend to throw at something and hit something other than it (al-Ijma' 656).
The fuqaha have nevertheless given definitions and classifications of accidental killing:
The Hanafis say: accident takes two forms:
The first: an accident in the intent: to throw at what one thinks is game while it is a human being; to think him a harbi while he is a Muslim; to throw at a harbi who had embraced Islam without one's knowing; or to aim at a man and hit another: all this is accident in the intent.
But if he aimed at a limb of a person and hit another limb of that same person, it is intentional killing entailing qisas.
The second: an accident in the act: to aim at a target and hit a human being; for each of these two categories is an accident, except that one concerns the act and the other the intent (al-Bahr al-Ra'iq 8/333, al-Ikhtiyar 5/32, al-Jawharah al-Nayyirah 5/198 and 199, al-Lubab 2/238).
The Malikis say: accident is of two kinds:
The first: not intending the blow, such as throwing at something or at a harbi and hitting a Muslim: this is an accident by consensus, with the diyah and the expiation.
The second: intending the blow in the manner of play: it is an accident; the same applies to lawful discipline, with an instrument fit for correction; but if the blow was for discipline in anger, the well-known position is that it is an intentional killing entailing qisas, except for the father and his like: no qisas, but an aggravated diyah (commentary of al-Dasuqi on al-Sharh al-Kabir 6/184, commentary of al-Sawi on al-Sharh al-Saghir 10/44, al-Bahjah fi Sharh al-Tuhfah 2/603, Minhah al-Jalil 9/19).
The Shafi'is say: accident is the absence of the intention of both, the act and the person, or of one of them: such as falling upon him and dying of it, aiming at a tree or a beast, hitting it and dying of it, or aiming at a human being and hitting another who dies of it: it is an accident, for lack of having intended the very person (al-Najm al-Wahhaj 8/329, Mughni al-Muhtaj 5/214, Tuhfat al-Muhtaj 10/289 and 290).
The Hanbalis say: accident is of two kinds:
An accident in the act: such as aiming at game, a target, a person even protected, or a beast even protected, and hitting a protected human being one did not intend: it is an accident.
It is also said: if he aimed at a protected person or a protected beast and hit a protected human being he did not intend, it is intentional killing; it is stated in al-Insaf that it is the text of Imam Ahmad, that the judge said it in his two narrations, and that it is the apparent sense of al-Khirqi's words, and it is what is understood from al-Muntaha.
Or again, that a sleeping person or the like, such as an unconscious person, turns over upon him: the expiation and the diyah are then borne by the aqilah.
Killing by cause, according to the Hanafis, is killing resulting from an act that does not lead directly to death, such as digging a well or placing a stone outside one's property, and a person perishes by it and dies: the perpetrator did not intend the killing, nor did he err in it: he is only a cause of it, through his transgression.
The consequence of that, according to the Hanafis, if a human being perishes by it, is the diyah upon the aqilah (the kin group that bears the blood money), for he is the cause of the perishing.
There is no expiation, for he did not carry out the killing with his own hand nor by his own weight.
He is not deprived of inheritance on account of the digging or the placing of the stone, for he is not suspected in that regard. All this applies if he dug the well on the pathway of people; away from their pathway, there is no liability.
He is liable only if the passerby did not deliberately walk upon the stone; if the passerby did so willingly, there is no liability, for he is the one who wronged himself by walking upon it of his own will.
And if he placed a stone that another moved from its place, the liability falls upon the one who moved it.
If the guardian and the digger differ, the digger saying: "he threw himself in", the word retained is that of the digger. And if he locks a free man in a house or walls him in and he dies of hunger or thirst, he owes nothing, for it is a cause that does not lead to the perishing: he died of another cause, the absence of food and water; only the hand then remained, and a free man is not compensated for by the hand.
If he gives a man poison to drink or to eat and he dies of it: if the dead man consumed it of his own initiative, there is no liability for the one who presented it, but he will be disciplined (ta'zir) and beaten; if he poured it into his throat or forced him to consume it, the diyah is due upon him: for if he consumed it himself, he is his own killer, and the one who presented it to him only deceived him; now deception does not carry the liability of blood (al-Mabsut 26/68, al-Hidayah 4/159 and 160, al-Ikhtiyar 5/33, al-Jawharah al-Nayyirah 5/204, al-Bahr al-Ra'iq 8/327 and 328).
According to the Hanbalis, this type follows the same ruling as accidental killing: the obligation of the diyah and the expiation.
The Hanbalis say: killing by cause, like digging a well, mounting the blade of a knife, and killing committed by one not legally responsible, is treated as accidental even though it is intentional. Ibn Qudamah, may Allah have mercy on him, said: this case mentioned belongs, according to most, to the category of accident: its author did not intend the act, or intended it without being capable of a valid intention; they therefore called it accident and gave it its ruling; al-Khirqi said it explicitly of the child and the insane: their deliberate act is an accident (al-Mughni 8/208, al-Sharh al-Kabir 9/320, Sharh al-Zarkashi 3/3, al-Mubdi' 8/240 and 241, al-Insaf 9/433, Kashshaf al-Qina' 5/594, Sharh Muntaha al-Iradat 6/6).
The Malikis, for their part, hold that the offense committed by way of cause takes the ruling of intentional killing. They say: if the perpetrator caused the destruction, by doing an act that is a cause of destruction, such as digging a well, even in his house, and the targeted person falls into it; or placing something slippery, like watermelon peel or water over slippery mud, on a path to harm a specific person; or tying an animal on a path for a specific person; or keeping a biting dog for a specific person (the targeting of a specific person applying to all that precedes), and that specific targeted person perishes by the well and what follows: retaliation falls upon the causer, and he will be executed if he was the equal of the victim or if the victim was above him (al-Taj wa-l-Iklil 5/222 and 223, Sharh Mukhtasar Khalil 8/8, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/186 and 187, Tahbir al-Mukhtasar 5/228, commentary of al-Sawi on al-Sharh al-Saghir 10/47).
In sum, retaliation in the four questions mentioned is bound by three conditions:
That the author intended harm by his act.
That the person whose harm he intended be specific.
That this specific person perish.
If it is not the targeted person who perishes but another, or if he targeted no specific person but harm in general, and a human being perishes by it: the diyah is due. And if he intended no harm by the digging and what follows, he owes nothing: it is a loss without indemnity. This is so if he dug the well in his property or on dead land for a purpose, even a general one; if he placed the slippery thing away from the path of people; if he tied the animal at his house or on the path by circumstance, as in a market, near a mosque or at someone's house, for hospitality; or if he keeps the dog at his house for guarding; otherwise, the diyah is also due (same references: al-Taj wa-l-Iklil 5/222 and 223, Sharh Mukhtasar Khalil 8/8, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/186 and 187, Tahbir al-Mukhtasar 5/228, commentary of al-Sawi on al-Sharh al-Saghir 10/47).
The Shafi'is say: qisas is due by the cause as by direct action; for what has a share in the acts leading to the loss of life is either direct action, which is what produces the destructive effect and achieves it, like the prior wound, and qisas applies in it; or a condition, which is what does not produce the destructive effect nor achieve it, but whose perishing occurs through another, the effect of that other depending on it: like the digging together with the fall, for the digging does not produce nor achieve the perishing; it is the stepping toward the pit that produces the effect, and what achieves the perishing is the falling into it and striking it; but without the digging, the perishing would not have occurred: this is why it was called a condition; its like is holding the victim for the killer, which carries no qisas; or a cause, which is what produces the destructive effect without achieving it.
The basis of this restriction is that the author either intends the very person of the victim, or not: if he intended him by the act leading to death without intermediary, it is direct action; if the act leads to it through an intermediary, it is the cause, like testimony entailing qisas; and if he did not at all intend the person of the victim, it is the condition.
The cause divides into three kinds:
The first is legal: like false testimony, from which retaliation is exacted upon false witnesses. If two men testify against a person before a judge for qisas, that is, by what entails it, in a matter of life or limb, or testify against him of apostasy or theft, and the one testified against is killed or amputated after the judge's ruling based on their testimony, then they retract and say: "we deliberately lied in it, and we knew he would be killed or amputated on our testimony", qisas then falls upon them, for they caused his destruction by a means that usually kills, in the manner of physical coercion; unless the victim's guardian acknowledges knowing of their lie in their testimony at the time of the killing: there is then no qisas against them, for they did not force his death physically or legally, and their word becomes a pure condition, like holding the victim for the killer: qisas then falls upon the guardian. But if the guardian says: "I knew of their lie" after the killing, qisas is not thereby lifted from them.
The second is customary: like presenting poison to one who will eat it. If he entertains with poison that usually kills, or hands it to a child without discernment or to an insane person who eats it and dies of it, qisas is due, for he forced him into it, whether he said to him "it is poisoned" or not; the like of these two is the foreigner who believes obedience to his command is binding: he is then in the position of the child and the insane; as for the child with discernment, he is like the adult, and likewise the insane person who retains discernment. But if he thus entertains a sane adult who did not know the state of the food: the diyah, without qisas, for he consumed it by his choice, without coercion.
If the wounded man neglects the treatment of a lethal wound and dies of it, qisas is due, categorically, upon the wounder, for healing is not assured even if treated, and the wound is lethal in itself. As for what does not kill, like a venesection: if he did not bind the vein until death, there is nothing to pay, for he killed himself, like one who detains him while he has food and does not eat.
If someone holds him and another kills him; or if he digs a well, even wrongfully, and another throws the victim into it, the throwing killing most of the time; or if he throws her from a height and another cuts her in two, that is, severs her in half, for example before she reaches the ground: qisas falls upon the killer in the first case, as with the one who holds the woman for fornication: the fornicator is flogged without him; and just as there is no qisas, there is no diyah: he will be disciplined, for he is sinful. Qisas falls upon the one who threw him in, in the second case, by precedence of direct action, for the digging is a condition with no effect in the presence of direct action. Qisas falls upon the one who cut, in the third case, under the recognized rules, for his act severed the effect of the cause; and nothing weighs upon the one who threw her, whether he knew the situation or not, or even if the one who cut is of those who incur no liability, like a harbi.
The third is physical: like coercion to kill.
Thus, if he coerces him to kill a person wrongfully and he kills him, qisas falls upon the coercer (mukrih) and upon the coerced (mukrah). That it falls upon the coercer is because he destroyed him by a means ordinarily intended for destruction, as if he had aimed an arrow at him and it killed him; and that it falls upon the coerced is because he killed him intentionally and wrongfully to preserve his own life, like the one pressed by necessity who kills in order to eat; and because he is the instrument of the coercer, to the point that it is as if the coercer had struck with him.
And if a sane adult coerces an adolescent, or the reverse, to kill a person and he kills him, qisas falls upon the adult, for its ground is present: purely wrongful killing.
And if someone says to another: "kill me, or I will kill you", and that other kills him, there is no qisas against him, for permission is a doubt that averts the fixed penalty; there is no diyah either (al-Najm al-Wahhaj 8/333 and 341, Mughni al-Muhtaj 5/217 and 223).
Most of these cases have already passed before us in the first category, that of intentional killing.
This type of killing has been mentioned by the Hanafi and Hanbali fuqaha and others. The Hanafi fuqaha say: what is treated as accidental, such as the sleeping person who turns over upon a man and kills him, follows the ruling of accident, that is, the dropping of qisas, the obligation of the diyah and the deprivation of inheritance.
The dropping of qisas, because there was no deliberateness; the obligation of the diyah, because death occurred through his act; and the deprivation of inheritance, because he may have intended to kill him and feigned sleep.
It was treated as accidental because the sleeper has no intent: his act is therefore described neither as deliberate nor as erroneous; this is why it was not given the name of accident, except that it follows the ruling of accident because death occurs through his act, as with the one who errs (al-Mabsut 26/68, al-Hidayah 4/158 and 159, al-Ikhtiyar 5/33, al-Jawharah al-Nayyirah 5/203, al-Bahr al-Ra'iq 8/327 and 328).
Many Hanbalis have mentioned this category, saying: what is treated as accidental, like a sleeper turning over upon a person and killing him, or something falling upon him from a height, follows the ruling of accident in all its rulings (al-Mughni 8/208, al-Sharh al-Kabir 9/320, Sharh al-Zarkashi 3/3, al-Mubdi' 8/240 and 241, al-Insaf 9/433, Kashshaf al-Qina' 5/594, Sharh Muntaha al-Iradat 6/6).
According to the generality of the fuqaha, this category is treated as accidental and takes all the rulings of accidental killing: they placed it within the category of accident, and there is no quarrelling over terms.
Ibn Qudamah, may Allah have mercy on him, said: there is no disagreement among the people of knowledge that there is no qisas upon a child nor upon an insane person; the same applies to anyone whose intellect is removed by an excusable cause, like the sleeper, the unconscious and their like. The basis for this is the saying of the Prophet, peace and blessings of Allah be upon him:
"The pen is lifted from three: from the child until he matures, from the sleeper until he wakes, and from the insane person until he recovers."
Cited by Ibn Qudamah in al-Mughni (8/226)
It is also because qisas is an aggravated punishment: it is not due upon the child nor upon one deprived of reason, like the fixed penalties; and because they have no valid intention: they are like the accidental killer (see also Bada'i' al-Sana'i' 7/180, al-Taj wa-l-Iklil 5/216, Sharh Mukhtasar Khalil 8/3, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/176, Tahbir al-Mukhtasar 5/220, Rawdat al-Talibin 6/158, Asna al-Matalib 4/12, al-Najm al-Wahhaj 8/355, Mughni al-Muhtaj 5/231, Kashshaf al-Qina' 5/613 and 614, Sharh Muntaha al-Iradat 6/26, Manar al-Sabil 3/225).
The drunk person who kills in his drunkenness: if his intellect was removed by a non-prohibited means, he is like the unconscious: no qisas upon him, by agreement, for he has neither intention nor restraint.
They then differed concerning one who becomes drunk by prohibited means and kills in his drunkenness, the fact being established by evidence or by confession: is qisas exacted upon him, or not?
The majority of the fuqaha, Hanafis, Malikis, Shafi'is and Hanbalis according to the school's position, hold that qisas is due upon the drunk person who transgressed by his drunkenness if he killed during it: for acts of disobedience are not causes of dispensation; and so that qisas not be abandoned, for whoever intends to kill will not scruple to get drunk in order to escape it.
And because the Companions, may Allah be pleased with them, treated his drunkenness like his slander: they imposed upon him the fixed penalty of the slanderer; now if his slander did not entail the penalty upon him, the penalty would not have been required by its mere presumption; and if the penalty applies, pure qisas, which is a human right, entails it all the more.
For otherwise, whoever wished to disobey Allah the Most High would drink what intoxicates him, then kill, fornicate and steal without incurring any punishment or sin, and his disobedience would become a cause for cancelling the punishments of this world and the hereafter: there is no sense in that. Divorce differs from it: it is a word that can be annulled, unlike killing (al-Durr al-Mukhtar 5/622 and 6/586 and 587, al-Dhakhirah 12/273, al-Qawanin al-Fiqhiyyah 226, al-Bayan 11/303, Rawdat al-Talibin 6/158, Asna al-Matalib 4/12, al-Najm al-Wahhaj 8/355, Mughni al-Muhtaj 5/231, al-Mughni 8/226, Kashshaf al-Qina' 5/613 and 614).
According to the Shafi'is, whoever transgressed by drinking a medicine that removes the intellect is assimilated to this case; as for the non-transgressor, he is like the feeble-minded: no qisas upon him.
The Hanbalis say: as for one who drank or ate, in a prohibited manner, what removes the intellect other than wine: if his intellect disappears entirely so that he becomes insane, there is no qisas upon him; and if it disappears briefly and returns without treatment, it is like drunkenness, according to the detail already given (al-Mughni 8/226).
The Hanbalis also said, in one view: qisas is not due upon him, for he is one whose intellect is removed, like the insane, and because he is not legally responsible, like the child and the insane (al-Mughni 8/226).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, was asked about two men who had drunk, with a third man in their company. When they wanted to return to their homes, they quarrelled, and one struck the other with a blow of a club: he fell from his mount. The third man stayed with him until he remounted and accompanied him to his home; he did not stay with him, and he fell from his mount a second time; in the morning, he was dead.
A man among the relatives of the deceased then questioned the third in secret, without informing him of the death, and he related their story. Witnesses testified that so-and-so had struck him, the witnesses not having heard anything from the deceased; and the suspect had not turned himself in, for fear of the punishment, so as not to confess against himself; the deceased leaves a suckling daughter and brothers.
He answered: if the one who drank the wine knew what he was saying, then if he kills, he is a killer: qisas and the punishment of a life-taker are due upon him, by the agreement of the scholars.
But if he had become drunk to the point of not knowing what he says, or more, and he killed: is qisas due upon him, for him to be handed over to the heirs of the victim that they may kill him if they wish? There are two views among the scholars, and two narrations from Ahmad. Most of the fuqaha, among the companions of Abu Hanifah, Malik and al-Shafi'i, and many companions of Ahmad, make it due as upon the sober. If only one witness testifies to the killing, no judgment is based on it, unless the heirs of the victim join to it fifty oaths. This applies if he died of his blow, that blow being pure aggression; but if he died while another had also struck, there is disagreement over qisas... (al-Mughni 8/226).
The Hanafis hold that one who strikes another with a small stick, a small stone, a slap and the like of what is not usually destructive, like the whip and the like, when he strikes once or twice without repeating the blows, commits quasi-intentional killing without qisas; likewise with the small whip while repeating the blows until death: it is quasi-intentional, without disagreement among the Hanafi fuqaha (Bada'i' al-Sana'i' 7/233, al-Ikhtiyar 5/31 and 32, al-Jawharah al-Nayyirah 5/197, al-Lubab 2/237, Durar al-Hukkam 5/424).
The fuqaha have differed concerning one who kills another by strangling with his hands or with a rope, or by throwing a cushion or a handkerchief over his face and leaning upon it until he dies: is this to be counted as intentional killing with qisas exacted, or as quasi-intentional?
The majority of the fuqaha, the Malikis, the Shafi'is, the Hanbalis and the two Hanafi companions Abu Yusuf and Muhammad, hold that one who kills another by strangling with his hands or a rope, or by throwing a cushion or a handkerchief over his face and leaning upon it until he dies, commits intentional killing: qisas falls upon his author if he continued this for a duration of which the strangled person usually dies; for he intended his death by a means that kills most of the time; Allah, exalted be His name, has said:
"And whoever kills a believer intentionally..."
Surah an-Nisa, 93
Now this one is an intentional killer: he must be put to death.
The two companions Abu Yusuf and Muhammad say: if he strangles him until death, it is intentional killing with qisas; this applies if he persisted in the strangling until death; if he released him before death, one looks: if he persisted in the strangling for a duration of which a human being usually dies, qisas applies according to them both; if not, it does not, by consensus (Tibyan al-Haqa'iq 6/101, al-Bahr al-Ra'iq 8/333, commentary of Ibn 'Abidin 6/543, Mu'in al-Hukkam p. 181).
The Malikis say: whoever strangles another, or squeezes his two testicles until death, qisas is exacted upon him (al-Taj wa-l-Iklil 5/222, Sharh Mukhtasar Khalil 8/7, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/184, Tahbir al-Mukhtasar 5/227, commentary of al-Sawi on al-Sharh al-Saghir 10/43).
The Shafi'is say: if he strangles him with his hands or a rope, or places his hand over his mouth preventing his breathing, or throws a cushion or a handkerchief over his face and leans upon it until he dies: if he did this for a duration of which the strangled person usually dies, qisas falls upon his killer, for he intended his death by a means whose like usually kills; and if it was for a duration in which his like may as well die as not die, the more usual being that he does not die: qisas does not apply, and he owes an aggravated diyah, for his act is a deliberate accident.
And if he strangles him with a strangulation of which the like dies, then releases him alive, and he then dies: if the strangling left in him an impairment such that his breath no longer comes out, or if he remained in pain until death, qisas falls upon the strangler, for he died from the trace of his act.
And if he strangles him then releases him alive, without pain or ailment, and he bears it, then recovers and regains strength, then dies: no qisas nor diyah upon the strangler, for he died of another cause, as when he had wounded him and his wound had healed, then he died.
And if he passes a running noose around his neck, places a stool under his feet, ties the rope to the ceiling of the house or the like, then removes the stool from under his feet, and he is strangled and dies: qisas falls upon him, for it is the most consummate form of strangulation.
Likewise if he violently squeezes his two testicles until death: qisas applies, for that usually kills (al-Muhadhdhab 2/176, al-Bayan 11/338 and 339, Rawdat al-Talibin 6/135).
The Hanbalis say: preventing the breath from coming out is of two kinds:
One: to place around his neck a running noose, what is known today as the gallows, then to hang him from a wood or something by which he is raised above the ground: he is strangled and dies; this is intentional killing, whether he dies at once or lasts for a time, for it is the most consummate form of the kinds of strangulation, the one the authorities customarily used against thieves and their like among the corrupters.
The second: to strangle him on the ground with his hands, a handkerchief or a rope, or to suffocate him with a cushion or anything placed over his mouth and nose, or to place his hands over them, and he dies: if he did this to him for a duration of which one usually dies, and he dies of it, it is intentional killing with qisas. And if he does it for a duration of which one does not usually die, and he dies of it, it is a deliberate accident; unless the thing is too slight for death to be suspected of it: it then entails no indemnity, for it is like touching him.
And if he strangles him then leaves him, for a while for example, until death: qisas applies, for he died from the trace of his offense, like one who dies from the trace of the wound; and if he breathes and recovers then dies: no retaliation, for the apparent is that he did not die of it, like the wound that heals and then death (al-Mughni 8/210, al-Kafi 4/13, Kashshaf al-Qina' 5/598, Sharh Muntaha al-Iradat 6/10, Matalib Uli al-Nuha 6/9).
Imam Abu Hanifah, may Allah have mercy on him, holds that one who strangles another until death owes no qisas: it is quasi-intentional, whose aggravated diyah is borne by his aqilah; for the instrument carries a deficiency that causes hesitation: did he intend his death by this act, or did he intend to press the pain and inflict harm upon his person, death occurring while he could not bear it.
However, if he has strangled more than once, he is put to death forthwith, for his intention to kill by strangling has become apparent, strangulation being known to lead to death and his having persisted in intending it; and because he has become one who spreads corruption in the land, and whoever is like that, his evil is repelled by execution.
But if he was a known strangler, having strangled more than one: execution applies to him, for his intention to kill by strangling has become apparent, strangulation being known to lead to death and his having persisted in intending it; and because he has become one who spreads corruption in the land, and whoever is like that, his evil is repelled by execution, as a fixed penalty and not as qisas (al-Mabsut 26/153, Bada'i' al-Sana'i' 7/234, al-Hidayah 2/134, Sharh Fath al-Qadir 5/432, Tibyan al-Haqa'iq 6/101, al-Bahr al-Ra'iq 8/333, commentary of Ibn 'Abidin 6/543, Mu'in al-Hukkam p. 181).
...his aqilah having to pay the diyah; now she was pregnant, and he ruled a ghurrah for the fetus. Someone of her kin said: shall we pay blood money for one who tasted nothing, nor drank, nor cried out to be heard, and whose like is cast away? He said: "rhyming, like the rhyming of the Bedouins" (Reported by Muslim 1682).
Now the aqilah does not bear intentional killing: proof that killing with the tent pole is not intentional; and what is greater than it usually kills: it is intentional killing.
Of this type: throwing upon him a wall, a rock, an enormous piece of wood or the like of what usually destroys, and destroying him by it: qisas applies, for it usually kills (al-Mughni 8/209 and 210, al-Kafi 4/14, Kashshaf al-Qina' 5/595 and 596, Sharh Muntaha al-Iradat 6/7 and 8).
The fuqaha have differed on one who strikes another with a small blunt object, such as a small stone, a whip or a stick, and death ensues: does qisas apply, or not?
The majority of the fuqaha, in general, the Malikis, the Shafi'is and the Hanbalis, hold that one who strikes another with a small blunt object, such as the stick, the whip or the small stone, and death ensues, incurs qisas.
The Malikis say: the condition of the killing that entails qisas is that the killer intended the blow, the intention to kill not being required. If he intended to strike him with what usually kills and death ensues, qisas will apply; likewise if he intended to strike him with what does not usually kill, such as striking him with a stone, a slap, a jab, a pellet, a rod or a stick, and death ensues: qisas will also apply, even without having intended his death: the mere intention of the blow suffices to make qisas due.
If he did not intend the blow, and that is established by evidence or by the admission of the victim, there is no retaliation against him: it is an accident, whose diyah is borne by the aqilah.
Whether he intended the very person struck, or intended to strike someone wrongfully and hit another: he will be put to death for it, and the view that "it is an accident" is weak.
But if he intended to strike someone he may lawfully strike and hit another, it is an accident, provided the blow was in play or for discipline; likewise if he strikes another in the manner of play: it is an accident according to the correct view, and the same for lawful discipline, with an instrument fit for correction; but if the blow was for discipline in anger, the well-known position is that it is an intentional killing entailing qisas, except for the father and his like: no qisas, but an aggravated diyah (al-Taj wa-l-Iklil 5/221, Sharh Mukhtasar Khalil 8/7, al-Sharh al-Kabir with the commentary of al-Dasuqi 6/182 and 184, Tahbir al-Mukhtasar 5/226 and 227, commentary of al-Sawi on al-Sharh al-Saghir 10/43).
The Shafi'is say: if he strikes him with a whip or a light stick, or throws a small stone at him, one looks: if he repeated the blows, reaching a number of which the like usually dies according to the state of the person struck, until death; or if the pain intensified and he remained suffering until death: qisas applies. If he did not repeat and confined himself to one or two strokes: if it was in a fatal spot, or in intense heat or cold that aid destruction, or if the person struck was small, or weak by constitution or by circumstance: qisas applies, for it is usually lethal; and otherwise, it is quasi-intentional with the diyah (al-Muhadhdhab 2/176, al-Bayan 11/337 and 338, Rawdat al-Talibin 6/134 and 135, Mughni al-Muhtaj 5/215).
The Hanbalis say: if he strikes him with a small blunt object, like the stick, the whip or the small stone; or jabs him with his hands in a fatal spot, or in a state of weakness of the person struck, from illness or young age; or in a season of excessive heat or cold, such that that blow kills him; or if he repeated the blows until killing him with what usually kills: qisas applies, for he killed him with what the like of usually dies of, like the blow struck with a heavy blunt object.
And if he claims illness in all of that, it is not accepted; likewise if he says: "I did not intend his death", he is not believed, for the apparent is otherwise.
Of this type: if he squeezes his testicles violently and kills him with a squeeze of which the like usually dies: qisas falls upon him.
And if the blow was not struck in a fatal spot, nor in a state of weakness and the like: it is a deliberate accident, with the diyah; unless the blow is very slight, like the stroke of the pen or the finger away from a fatal spot and the like of what killing is not suspected of: there is then neither qisas nor diyah, for he did not die of it; likewise if he touches him with the heavy object without striking him: the diyah is due only for killing, and this is not killing (al-Mughni 8/210, al-Kafi 4/12 and 13, Kashshaf al-Qina' 5/596, Sharh Muntaha al-Iradat 6/7 and 8, Manar al-Sabil 3/219).
The people of knowledge agreed that accidental and quasi-intentional killing entail the diyah, according to the saying of the Most High:
"Whoever kills a believer by mistake, then the freeing of a believing slave and a diyah delivered to his family."
Surah an-Nisa, 92
And the diyah is borne by the aqilah; they proved it by the Sunnah and by consensus.
As for the Sunnah: al-Mughirah ibn Shu'bah narrated:
"A woman killed her co-wife with a tent pole; the case was brought to the Messenger of Allah, peace and blessings of Allah be upon him, and he ruled that the diyah would be upon her aqilah; now she was pregnant, and he ruled a ghurrah for the fetus. Someone of her kin said: shall we pay blood money for one who tasted nothing, nor drank, nor cried out to be heard, and whose like is cast away? He said: rhyming, like the rhyming of the Bedouins."
Reported by Muslim (1682)
In the Sunan of Ibn Majah, from al-Mughirah ibn Shu'bah, may Allah be pleased with him:
"The Messenger of Allah, peace and blessings of Allah be upon him, ruled that the diyah is upon the aqilah."
Authentic hadith, reported by Ibn Majah (2633)
And according to his saying, peace and blessings of Allah be upon him:
"Know that the diyah of quasi-intentional accident, that committed with the whip and the stick, is one hundred camels, forty of them pregnant, carrying their young in their wombs."
Authentic hadith, reported by Abu Dawud (4549), an-Nasa'i (4796), Ibn Majah (2628) and Ahmad (6552)
And the hadith of Abu Hurayrah, may Allah be pleased with him:
"Two women of Hudhayl fought; one threw a stone at the other and killed her and what was in her womb; the Prophet, peace and blessings of Allah be upon him, ruled that the diyah for her fetus would be a male or female slave, and that the diyah of the woman would be upon her aqilah."
Reported by al-Bukhari (6910) and Muslim (1681)
And because he, peace and blessings of Allah be upon him, asked about the woman who had struck her co-wife with a tent pole, killing her and her fetus, ruled a ghurrah for the fetus and placed the diyah upon her aqilah (Reported by Muslim 1682).
...because of its resemblance to accident with regard to the instrument used, according to the saying of the Most High:
"Whoever kills a believer by mistake, then the freeing of a believing slave and a diyah delivered to his family."
Surah an-Nisa, 92
There is no retaliation, for it is not purely intentional killing according to all who affirm quasi-intentional killing.
All who affirm quasi-intentional killing agree that the diyah is due in it and is borne by the aqilah, according to the saying of the Prophet, peace and blessings of Allah be upon him:
"Know that the diyah of quasi-intentional accident, that committed with the whip and the stick, is one hundred camels, forty of them pregnant, carrying their young in their wombs."
Authentic hadith, reported by Abu Dawud (4549), an-Nasa'i (4796), Ibn Majah (2628) and Ahmad (6552)
And the hadith of Abu Hurayrah, may Allah be pleased with him:
"Two women of Hudhayl fought; one threw a stone at the other and killed her and what was in her womb; the Prophet, peace and blessings of Allah be upon him, ruled that the diyah for her fetus would be a male or female slave, and that the diyah of the woman would be upon her aqilah."
Reported by al-Bukhari (6910) and Muslim (1681)
And because he, peace and blessings of Allah be upon him, asked about the woman who had struck her co-wife with a tent pole, killing her and her fetus, ruled a ghurrah for the fetus and placed the diyah upon her aqilah (Reported by Muslim 1682).
From 'Amr ibn Shu'ayb, from his father, from his grandfather, the Prophet, peace and blessings of Allah be upon him, said:
"The blood money of quasi-intentional killing is aggravated, like the blood money of intentional killing, but its author is not put to death."
Hasan hadith, reported by Abu Dawud (4565) and Ahmad (6718)
And because it is a killing that does not entail retaliation: its diyah is therefore upon the aqilah, as with accidental killing (al-Hidayah 4/158 and 159, al-'Inayah 15/122 and 123, al-Jawharah al-Nayyirah 5/196 and 197, al-Ta'rifat 165, al-Bahr al-Ra'iq 8/332, al-Ishraf ila Nukat Masa'il al-Khilaf 4/107 and 108, al-Bayan 11/449 and 450, al-Najm al-Wahhaj 8/329 and 330, Mughni al-Muhtaj 5/215, al-Mughni 8/216, Kashshaf al-Qina' 5/603, Sharh Muntaha al-Iradat 6/13 and 14, Manar al-Sabil 3/221).
And because every diyah due for a killing without settlement or partial pardon is upon the aqilah.
Ibn Qudamah, may Allah have mercy on him, said: the diyah, that is, in quasi-intentional killing, is upon the aqilah according to the majority of the people of knowledge; Malik made of it an intentional killing entailing qisas (al-Mughni 8/216).
This diyah is aggravated and is upon the aqilah; the author does not share in it according to the Shafi'is and the Hanbalis; according to the Hanafis, he shares in it with them as one of them; this has been set out above in the category of accidental killing.
The remaining rulings of quasi-intentional killing are the same as the rulings of accidental killing already mentioned.
Likewise if he struck him to repel his aggression, or struck him as he had struck him, whether he died of another cause or not; and Allah knows best (Majmu' al-Fatawa 34/151 and 152).
The fuqaha set as a condition, for qisas to apply, that the victim be protected in his blood. Thus, there is no qisas upon a Muslim who kills:
1 - the harbi (non-Muslim combatant): his blood is rather lawful, for lack of protection; and if he comes repenting, he is not put to death for what he killed before his repentance; there is no disagreement over this; whether he be of those whose jizyah is accepted, like the Jew and the Christian, or of those whose jizyah is not accepted, like the idolater; for the condition of the killer liable to qisas is adherence to the rulings, and the harbi does not adhere to them.
2 - likewise the harbi holding a safe-conduct, if a Muslim kills him: no qisas upon him according to the Hanafis in the apparent narration, the Malikis, the Shafi'is and the Hanbalis; for his protection is not established absolutely, but temporarily, until the end of his stay in the abode of Islam; this is because the safe-conduct holder is of the people of the abode of war: he does not enter the abode of Islam intending residence, but for a passing need he comes to fulfill before returning to his original homeland; his protection therefore carries a presumption of nonexistence, according to the saying of the Prophet, peace and blessings of Allah be upon him:
"The Muslims are equal in their blood: the guarantee of the least of them binds them all, and the safe-conduct of the furthest of them binds them all; they are one hand against those outside them; the strongest among them supports their weakest, and the one who hastens, the one who stays; a believer is not put to death for a disbeliever, nor one holding a covenant for the duration of his covenant."
Authentic hadith, reported by Abu Dawud (2751 and 4530), an-Nasa'i (4735 and 4746), Ibn Majah (2660) and Ahmad (6970)
...for every diyah due for a killing without settlement or partial pardon is upon the aqilah.
Imam Ibn al-Mundhir, may Allah have mercy on him, said: the people of knowledge agreed that the diyah of accident is upon the aqilah (al-Ishraf 8/7, al-Ijma' 699).
The fuqaha of the great centers agreed that the diyah of accident is deferred over three years; its detail will come in the Book of Diyat.
The fuqaha agreed that the accidental killer and the quasi-intentional killer inherit nothing of the diyah; they differed, however: do they inherit from the estate of the deceased, or not?
The Malikis hold that he inherits from his estate but inherits nothing of his diyah; this view has been transmitted from 'Ata' ibn Abi Rabah, Ibn al-Musayyib, Mujahid and al-Zuhri; it is also the view of al-Awza'i, Sa'id ibn 'Abd al-'Aziz, Ishaq ibn Rahawayh and Abu Thawr. Abu Thawr argued it thus: he inherits the rest of the estate by the Book, for Allah, exalted be His name, assigned the inheritances to their holders without mentioning a killer; when they differed over accidental killing, inheritance therefore belongs to him by the Book: the apparent meaning of the Book is never left except by a text of the Book, of the Sunnah, or a consensus showing that a part of it is excluded; failing that, the Book holds to its apparent meaning.
And because depriving the killer of inheritance is a punishment, now the one who errs suffers no punishment, just as no retaliation falls upon him (al-Muwatta' 2/868, al-Tamhid 23/443 and 446, al-Awsat 7/467 and 468, al-Ishraf 4/356).
The majority of the fuqaha, Hanafis, Shafi'is and Hanbalis, hold that the killer, intentional or accidental, inherits nothing of his estate, by the general saying of the Prophet, peace and blessings of Allah be upon him:
"The killer does not inherit."
Authentic hadith, reported by Ibn Majah (2645)
From 'Amr ibn Shu'ayb:
"Abu Qatadah, a man of Banu Mudlij, killed his son; 'Umar then took from him one hundred camels: thirty hiqqah, thirty jadha'ah and forty pregnant ones, then said: where is the brother of the victim? For I heard the Messenger of Allah, peace and blessings of Allah be upon him, say: 'The killer has no inheritance.' In a variant: 'Had I not heard the Messenger of Allah, peace and blessings of Allah be upon him, say: "The killer has nothing", I would have made you inherit'; he then called the brother of the victim and gave him the camels."
Reported by Ibn Majah (2646) and Ahmad (347 and 348)
And in the version of Abu Dawud:
"The killer has nothing; and if there is no heir, the inheritance goes to the person closest to him; and the killer does not inherit."
Hasan hadith, reported by Abu Dawud (4564)
Abu Qilabah narrated: "A man killed his brother in the time of 'Umar ibn al-Khattab, may Allah be pleased with him; he did not make him inherit of him, and the man said: O Commander of the Faithful, I killed him only by mistake. He replied: had you killed him intentionally, we would have executed you for him."
Khallas narrated that "a man threw a stone which struck his mother and killed her; 'Ali ibn Abi Talib, peace be upon him, made him pay the diyah and excluded him from the inheritance, saying: your share of her inheritance is that stone."
And because whoever's inheritance of the diyah of his victim is dropped, so is his inheritance of the rest of his estate, like the intentional killer: every estate whose inheritance would be forbidden him were he intentional is forbidden him even if he erred, like the diyah (al-Mabsut 30/46 and 47, al-Fatawa al-Hindiyyah 6/454, al-Umm 4/72, al-Hawi al-Kabir 8/84 and 85, al-Mughni 6/244, al-Kafi 2/560, al-Fatawa al-Kubra 3/261, Manar al-Sabil 2/401).
As for deprivation of the bequest, its detail has been set out above in intentional killing.
Abu Hanifa and Muhammad, may Allah have mercy on them, said: if the heirs ratify it, it is valid; for the prohibition exists for the sake of the heirs' right, since the benefit of its annulment reverts to them, like the benefit of the annulment of inheritance; so if they ratify it, it is valid.
Abu Yusuf, may Allah have mercy on him, said: it is not valid; for it is a bequest made by way of punishment, so it is like the deprivation of inheritance, which does not depend on their ratification, and the bequest is likewise (1).
(1) "Bada'i' al-Sana'i'" (7/339), "Mukhtasar Ikhtilaf al-'Ulama'" (5/19, 20), "al-Hidaya" (4/232), "Mukhtasar al-Wiqaya" (2/421), "al-'Inaya" (16/66), "al-Jawhara al-Nayyira" (6/378), "al-Ikhtiyar" (5/78, 79).