Islamic Fiqh > Penalties (hudud) > Qisas and diyat: homicide and compensation > Diya of non-Muslims, the 'aqila and the killer's repentance
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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 people of knowledge agree that the diyas of the women of the disbelievers are half of the diyas of their men. Imam Ibn Qudama, may Allah have mercy on him, said: « As for the diyas of their women, they are half of the diyas of their men; we know of no disagreement on this. » Ibn al-Mundhir said: « The people of knowledge unanimously agreed that the diya of a woman is half the diya of a man. » And since the diyas of Muslim women are half those of their men, so too the women of the People of the Book: half the diyas of their men.
Section: their injuries follow their diyas, just as the injuries of Muslims follow the diyas of Muslims; and their diyas are increased when the sacred characters combine, according to whoever holds that the diyas of Muslims are increased.
Harb said: I said to Abu Abd Allah: « What if he kills a dhimmi in the Sanctuary? » He said: « An addition is also made to his amount, just as it is made for the Muslim. » Al-Athram said: it was said to Abu Abd Allah: « He caused injury to a Zoroastrian, in his eye and his hand? » He said: « It is according to the reckoning of his diya, just as the Muslim is held to proportional reckoning; the same applies here. » It was said: « He cut off his hand? » He said: « Half of his diya » (al-Mughni 8/313).
When a woman is pregnant and someone strikes her or frightens her, so that she miscarries or expels her fetus, her situation does not go beyond two cases: either she expels it dead, or she expels it alive.
The first case: she expels the fetus dead (whether by her own act or by the act of another):
When a woman expels the fetus dead, male or female, the diya of the fetus is due from the offender: it is a ghurra, that is, a slave or a slave-girl, or five camels. According to the hadith of Abu Hurayra, may Allah be pleased with him:
« Two women of the tribe of Hudhayl fought; one of them threw a stone at the other and killed her and what was in her womb. The Prophet, may the peace and blessings of Allah be upon him, ruled that the diya for her fetus was a slave or a slave-girl, and he ruled that the woman's diya was to be borne by her 'aqila. »reported by al-Bukhari (6910) and Muslim (1681)
Likewise, when the Prophet, may the peace and blessings of Allah be upon him, was asked about the woman who had struck her co-wife with the pole of a tent and killed her and her fetus:
« He ruled a ghurra for the fetus and ruled that the woman's diya was to be borne by her 'aqila. »reported by Muslim (1682)
The people of knowledge unanimously agree on this. Imam Ibn al-Mundhir, may Allah have mercy on him, said: « Everyone whose statements we preserve, among the people of knowledge, agrees that the one who strikes the belly of a woman so that she expels a dead fetus owes the ghurra » (al-Ijma' 711). He also said: « It is established that the Messenger of Allah, may the peace and blessings of Allah be upon him, ruled for the fetus a ghurra consisting of a slave; this is the view of the generality of the people of knowledge. » And: « Everyone whose statements I retain, among the people of knowledge, agrees that the freeing of a slave is due, together with the ghurra, from the one who strikes the belly of a woman. »
For the fetus of a Jewish or Christian woman, one tenth of the diya of its mother is due; this is the view of a group of jurists, and I have preserved no disagreement with their view.
If she does not expel it and it dies in her womb without coming out, nothing is due and no ruling attaches to it; this is likewise a matter of consensus, with no disagreement.
A group of jurists of the great cities say, concerning the woman who dies from a blow to her belly and whose fetus then comes out dead after her death, that no ruling applies to it and that it is wasted when she expels it after her death. Al-Layth and Dawud are the exception, for they said: « If one strikes the belly of a woman while she is alive and she expels a dead fetus, the ghurra is due, whether she expels it after her death or before. »
The rest of the jurists say: if its life is established by a movement, a sneeze, a cry at birth or anything else by which its life is certain, and it then dies, the full diya is due for it.
All agree that if one who deliberately strikes the belly of a woman causes her to expel a dead fetus, no retaliation nor diya is due from him (al-Iqna' 2/295 and 297, al-Ishraf 4/262 and 263, al-Ijma' 706, 607, 708 and 709).
Imam Abu Umar Ibn Abd al-Barr, may Allah have mercy on him, said: « The scholars unanimously agree that the ghurra is due for the fetus that falls from its mother's womb dead while she is alive at the moment it falls, and that male and female are equal in this: the ghurra is due for each of them » (al-Istidhkar 8/74).
Imam an-Nawawi, may Allah have mercy on him, said: « The scholars agreed that the diya of the fetus is the ghurra, whether the fetus is male or female. The scholars say: it is so because it may remain hidden, which would multiply disputes over it; the Law therefore set a criterion that cuts off dispute. Whether its formation is complete in its limbs or deficient, or it is a mudgha in which a human form has taken shape, in all these cases the ghurra is due by consensus » (Sharh Sahih Muslim 11/176, al-Bayan 11/495 and 497).
Imam Ibn Qudama, may Allah have mercy on him, said: « Question. He said: "If a pregnant woman drinks a medicine and thereby expels a fetus, she owes a ghurra from which she inherits nothing, and she must free a slave." There is, to our knowledge, no disagreement among the people of knowledge over this wording, except for the view of whoever does not impose the freeing of a slave, as we have set out previously. This is because she caused the expulsion of the fetus by her own act and her own offense: liability for it by the ghurra is therefore incumbent upon her, as if someone else had committed the offense against it. She inherits nothing of the ghurra, for the killer does not inherit from the one killed; the ghurra goes to the rest of the heirs, and the freeing of a slave is incumbent upon her, as we have set out. Likewise, if the one causing the expulsion of the fetus is its father or any other heir, he owes a ghurra from which he inherits nothing, and he must free a slave; this is the view of al-Zuhri, ash-Shafi'i and others » (al-Mughni 8/327, Kashshaf al-Qina' 6/27).
He said before that: « Question. He said: "And the freeing of a believing slave is incumbent upon everyone I mentioned who struck, whether the fetus comes out alive or dead." This is the view of the majority of the people of knowledge, among them al-Hasan, Ata', al-Zuhri, al-Hakam, Malik, ash-Shafi'i and Ishaq. Ibn al-Mundhir said: everyone whose statements we preserve, among the people of knowledge, imposed upon the striker of a woman's belly who expels a fetus the freeing of a slave together with the ghurra; this was reported from Umar, may Allah be pleased with him. Abu Hanifa said: the expiation is not due, because the Prophet, may the peace and blessings of Allah be upon him, did not impose the expiation when he imposed the ghurra. » Our proof is the word of Allah the Most High:
« Whoever kills a believer by mistake must free a believing slave »
Surah an-Nisa, 92
And He said: « If he belonged to a people between whom and you there is a pact, a diya... »
Reconciling the two is possible if the restrictive indication is removed from them; if reconciliation is obligatory and possible, then turning to the second hadith is obligatory. The majority hold that reconciliation is obligatory when possible, and that it takes precedence over preponderance (tarjih).
Moreover, Allah, glorified be He, says:
« And do not kill yourselves »
Surah an-Nisa, 29
When the ransom of his own self by wealth is set before the legally responsible person, it is obligatory upon him to ransom it. Its principle: one who finds food in famine at its usual price while he has the means to buy it is judged bound to buy it; how then about buying his own self? According to this report, if the victim leaves minor and adult heirs, the execution is postponed until the minors come of age so that the choice is theirs, especially when the minors exclude the adults, as sons do in relation to brothers.
The Qadi said: this question arose in Cordoba during the lifetime of my grandfather, may Allah have mercy on him. The scholars of his time gave a fatwa according to the well-known report, namely that the minor is not waited for; he, may Allah have mercy on him, ruled that he be waited for, by analogy. The people of his time denounced him for it, so firm was their attachment to blind following, to the point that he was compelled to compose on this question a work in which he defended this school, and that work is in people's hands (Bidayat al-Mujtahid 2/301).
When the diya is taken in intentional killing, it is from the offender's property, by consensus, according to the words of Ibn Abbas, may Allah be pleased with them both: « The 'aqila does not bear an intentional killing, nor a slave, nor a settlement, nor a confession » (hasan hadith, reported by al-Bayhaqi 8/104).
Imam Ibn al-Mundhir, may Allah have mercy on him, said: « They unanimously agreed that the 'aqila does not bear the diya of intentional killing, and that it bears the diya of accidental killing » (al-Ijma' 705).
Imam al-Qurtubi, may Allah have mercy on him, said: « The scholars unanimously agree that the 'aqila does not bear the diya of intentional killing, and that it lies upon the offender's property » (Tafsir al-Qurtubi 5/331).
Imam al-Mawardi, may Allah have mercy on him, said: there is no disagreement that the 'aqila does not bear the diya of intentional killing, whether retaliation is due in it or not, like the offense of a parent against a child and that in which there is no retaliation among penetrating wounds (ja'ifa) and other wounds; the diya is then immediately payable from the offender's property. Abu Hanifa said: « In intentional killing where there is no retaliation, the diya is due from the offender in deferred installments, like accidental killing. » This is mistaken for three reasons:
the first: the lapsing of retaliation in intentional killing does not entail deferring its diya, any more than its lapsing through pardon;
the second: compensation for destroyed property, when it does not involve collective bearing, becomes immediately due, like properties;
the third: since the diya of accidental killing is not made immediately due by the diversity of its situations, the diya of intentional killing is not deferred by the diversity of its situations (al-Hawi al-Kabir 12/340).
Imam Ibn Abd al-Barr, may Allah have mercy on him, said: Malik, from Ibn Shihab, reported that he said: « The established Sunna is that the 'aqila bears nothing of the diya of intentional killing, unless they so wish. » Malik, from Yahya ibn Sa'id, reported the same. Malik said: Ibn Shihab said: « The established Sunna in intentional killing, when the victim's heirs pardon, is that the diya lies upon the killer from his own property alone, unless the 'aqila assists him of its own good will. »
Abu Umar said: all these reports have one meaning: the 'aqila is not to bear anything of the diya of intentional killing. Intentional killing contains no diya: it contains only retaliation, unless the victim's heirs pardon the killer in order to take the diya and settle upon that, or one of those entitled to pardon pardons: the retaliation is thereby lifted and the diya becomes due to the one who did not pardon, with a condition or without; or the offense concerns, short of life, intentional wounds reaching one third or more; or there is no way to retaliation, like the penetrating wound and its like (al-Istidhkar 8/125).
Imam Ibn Qudama, may Allah have mercy on him, said: « The people of knowledge unanimously agree that the diya of intentional killing is due from the killer's property and is not borne by the 'aqila. This is the principle: the substitute for what is destroyed is due from the one who destroyed it, and the compensation for the offense upon the offender. » The Prophet, may the peace and blessings of Allah be upon him, said:
« No one commits an offense except against himself. »cited in Ibn Qudama's al-Mughni
And he said to one of his companions, upon seeing his young son with him:
« This son of yours? He said: yes. He said: verily, he commits no offense against you, and you commit none against him. »cited in Ibn Qudama's al-Mughni
What the offense entails is the effect of the offender's act: it must therefore be confined to its harm upon him, just as its benefit is confined to him, for if he earns, his earning is his alone to the exclusion of others; this ruling is established for all offenses and earnings. This principle was departed from only in excusable killing, because of the magnitude of what is due, the offender's usual incapacity to bear it, and the expiation that is obligatory alongside it.
The Malikis and Hanbalis hold that the diya of the hermaphrodite of indeterminate sex is half the diya of a male and half the diya of a female, which is three quarters of the diya of a male, because he carries the possibility of maleness and femaleness equally: the middle course must therefore be taken between the two, as in inheritance. The ruling on his wounds follows the ruling on his diya: below one third, male and female are equal; above it, (the compensation is) three quarters of the diya of a free male (Mawahib al-Jalil 8/450, al-Kafi 4/79, al-Mubdi' 8/351, al-Insaf 10/64, Kashshaf al-Qina' 6/23).
The jurists differed on the diya of the man of the Book, Jew or Christian, and of the Zoroastrian: is it like the Muslim's? Half the Muslim's diya? Or one third of the Muslim's diya?
The Hanafis hold that the diya of the man of the Book, Jew or Christian, and of the Zoroastrian under the pact of protection, as well as the musta'min, the holder of a safe-conduct, is the very diya of the Muslim: one hundred camels; their men like (Muslim) men, their women like women. The same applies to their injuries and their offenses among themselves, and what is short of life is equal in that. If they have 'aqila groups, they bear for one another as 'aqila do; if they have none, (the diya) is from the offender's property. This is because, by the pact of protection, they undertook to follow the rulings of Islam in what pertains to transactions: the ruling in force among them is therefore that established among Muslims, and their diya is like the diya of free Muslims.
And because Allah the Most High said:
« If he belonged to a people between whom and you there is a pact, a diya delivered to his family »
Surah an-Nisa, 92
Allah, exalted be He, stated the diya in absolute terms for all categories of killing, without distinction: this indicates that what is due is of one measure in all cases (al-Mabsut 26/84, Mukhtasar Ikhtilaf al-Ulama 5/155 and 156, Bada'i' as-Sana'i' 7/254 and 255, al-Hidaya 4/178, al-Ikhtiyar 5/46, Tabyin al-Haqa'iq 6/128, al-Jawhara an-Nira 5/233).
And by what Sa'id ibn al-Musayyab reported from the Prophet, may the peace and blessings of Allah be upon him:
« The diya of every holder of a pact, during his pact, is one thousand dinars. »reported by Abu Dawud in al-Marasil 264
And it was reported:
« Amr ibn Umayya ad-Damri killed two holders of a safe-conduct, and the Messenger of Allah, may the peace and blessings of Allah be upon him, ruled for them the diya of two free Muslim men. »transmitted without a reference in the source page
According to al-Zuhri, may Allah have mercy on him: « Our master Abu Bakr and our master Umar, may Allah be pleased with them both, ruled the diya of the dhimmi to be like the Muslim's », and a man of his stature does not lie.
It is likewise reported from Ibn Mas'ud, may Allah be pleased with him: « The diya of the People of the Book is like the diya of the Muslims. »
And because the obligation of the full diya rests on the completeness of the slain person's condition in what pertains to the rulings of this world, namely maleness, freedom and protected status, which are present, the deficiency of disbelief having no effect on the rulings of this world.
The Malikis and Hanbalis, within the school, hold that the diya of the dhimmi man of the Book and of the musta'min is half the diya of the free Muslim, by what Abu Dawud reported from Amr ibn Shu'ayb, from his father, from his grandfather, from the Prophet, may the peace and blessings of Allah be upon him:
« The diya of one bound by a pact is half the diya of a free Muslim. »hasan hadith, reported by Abu Dawud (4583)
In one wording:
« The diya of a disbeliever is half the diya of a believer. »hasan hadith, reported by at-Tirmidhi (1413)
In Ahmad's wording:
« The diya of a disbeliever is half the diya of a Muslim. »hasan hadith, reported by Ahmad in his Musnad (6692)
In one wording:
« The Prophet, may the peace and blessings of Allah be upon him, ruled that the diya of the People of the Book, who are the Jews and the Christians, is half the diya of the Muslims. »hasan hadith, reported by Ahmad in his Musnad (7092)
Al-Khattabi said: nothing is clearer than this on the diya of the People of the Book, and there is no harm in its chain of transmission (Ma'alim as-Sunan 4/37).
And because disbelief is a deficiency affecting the diya: it therefore entails its halving, like femaleness. Just as women, whose protected status is lower than that of men, have diyas lower than men's, so the disbeliever has a lower protected status than the Muslim, because of the deficiency that prevents his testimony, his inheritance, his marrying Muslim women and his receiving a share of spoils, among other things: it is therefore required that his diya be lower. And because it is a substitute for the self: disbelief therefore affects its diminution.
The diya of the Zoroastrian bound by a pact is one third of one fifth, for killing by mistake or intentionally: in gold, sixty-six dinars and two thirds of a dinar; in silver, eight hundred dirhams; in camels, six camels and two thirds of a camel. The same applies to the apostate according to the Malikis. The Hanbalis say: the apostate and the enemy combatant have no diya, because of the absence of protected status. The diya of the female in each of these categories is half: the diya of the free Muslim woman is fifty camels, and so on; that of the Zoroastrian and apostate women is four hundred dirhams, and so on (al-Muwatta 2/864, al-Istidhkar 8/116 and 120, al-Ishraf 4/129 and 131, Bidayat al-Mujtahid 2/311, at-Taj wa al-Iklil 5/257, al-Sharh al-Kabir with al-Dusuqi's commentary 6/226, Tahbir al-Mukhtasar 5/267, al-Mughni 8/212 and 213, Kashshaf al-Qina' 6/23 and 24, Manar as-Sabil 3/260 and 261).
However, according to the Hanbalis, the diya is increased against him if he is killed intentionally. Ibn Qudama said: « Question. He said: if they kill him intentionally, the diya is doubled upon his Muslim killer, in return for removing retaliation. » Thus ruled Uthman ibn Affan, may Allah be pleased with him; this is reported from Uthman: Ahmad reported it from Abd al-Razzaq, from Ma'mar, from al-Zuhri, from Salim, from his father: « A man killed a man under the pact of protection; the case was brought before Uthman, who did not execute him and imposed upon him an increased amount of one thousand dinars. » Ahmad followed this ruling; it has parallels in his school: he imposed upon the one-eyed man who gouged the eye of a sound person a full diya when he warded off retaliation from him, and upon the thief of dates twice their value when he warded off amputation from him; this is a ruling of the Prophet, may the peace and blessings of Allah be upon him, concerning the thief of dates: it is established likewise here. If, however, the killer is a dhimmi, or a dhimmi kills a Muslim, the diya is not doubled against him, because retaliation is due from him in both situations. The majority of the people of knowledge hold that the diya of a dhimmi is not doubled for intentional killing, because of the general import of the reports concerning it, and because it is an obligatory diya: it is therefore not doubled, like the Muslim's diya, or as when the killer is a dhimmi. There is no difference in the diya between the dhimmi and the musta'min, for each of them is a man of the Book whose blood is protected (al-Mughni 8/212 and 213).
The Shafi'is, and Ahmad in one report, hold that the diya of the Jew, the Christian, the holder of a pact and the musta'min, for each of them if he is protected and lawful to marry, is one third of the diya of a Muslim for life itself, because it was reported from Ubada ibn as-Samit, raised to the Prophet, may the peace and blessings of Allah be upon him:
« The Prophet, may the peace and blessings of Allah be upon him, ruled that the diya of the Jew and the Christian is four thousand dirhams. »note of the source: not found reported from Ubada
And according to Sa'id ibn al-Musayyab, Umar, may Allah be pleased with him, said: « The diya of the Jew and the Christian is four thousand, and that of the Zoroastrian eight hundred » (reported by ad-Daraqutni 3247 and 3248).
The Zoroastrian and the idolater granted security, that is, the one who enters the abode of Islam under a safe-conduct, has the lowest of the diyas: two thirds of one tenth of a Muslim's diya. In the increased form, two hiqa camels, two jadha'a, two khalafa and two thirds of a khalafa are due; in the lightened form, one camel and one third, of every age class.
The reason is that the Jew and the Christian possess five advantages: the possession of a scripture, a religion that was originally true by consensus, the lawfulness of marrying them, the lawfulness of their slaughtered animals, and their being maintained under the jizya. The Zoroastrian has none of these five except being maintained under the jizya: his diya is therefore one fifth of the diya of the Jew and the Christian (al-Umm 4/289, al-Hawi al-Kabir 12/308 and 311, al-Ishraf 7/396 and 697, al-Muhadhdhab 2/197, al-Bayan 11/492 and 493, an-Najm al-Wahhaj 8/470 and 471, Mughni al-Muhtaj 5/297 and 298).
Ibn Hubayra, may Allah have mercy on him, said: « They differed on the diya of the man of the Book, Jew or Christian. Abu Hanifa said: his diya is like the Muslim's, the same for intentional and accidental killing; he made no distinction between them. Malik said: the diya of the Jew and the Christian is half the Muslim's, in intentional and accidental killing alike; he made no distinction. Ash-Shafi'i said: the diya of the Jew and the Christian is one third of the Muslim's, in intentional and accidental killing alike; he made no distinction. Ahmad said: the diya of the Jew and the Christian, when he holds a pact and a Muslim kills him intentionally, is like the Muslim's; if a Muslim kills him by mistake, or the one who kills him is of his religion, or a man of the Book kills him intentionally and they demand the diya, two reports are transmitted from him: according to the first, one third of the Muslim's diya; according to the second, half the Muslim's diya, and this is the choice of al-Khiraqi » (al-Ifsah 2/243).
The companions of Malik differed on what was reported from him: Ibn al-Qasim said as Abu Hanifa did, and another said: it is not obligatory for the offender to join the 'aqila. Ash-Shafi'i said: if the 'aqila has the capacity for the diya, nothing is incumbent upon the offender; if the 'aqila lacks the capacity for it, it is incumbent upon him. Ahmad said: nothing is incumbent upon him, whether the 'aqila has the capacity to bear it or not; on this basis, whenever the 'aqila lacks the capacity to bear the entire diya, the remainder passes to the Public Treasury. The basis is the hadith of Huwayssa and Muhayssa (al-Ifsah 2/247 and 248).
The principle is that the diya is obligatory upon the offender himself, for the cause of its obligation is the killing, and it proceeded from him: he ought therefore to be charged with the diya, just as he bears the diya of intentional killing and compensation for destroyed property. But the wise Lawgiver left aside this principle for the diya of accidental killing, by the explicit text of the hadith: the Prophet, may the peace and blessings of Allah be upon him, placed it upon the 'aqila, as has been set out previously.
The wisdom of this, as the scholars say, is that accidental offenses are frequent and the diya of a human being is considerable: imposing it upon the offender from his own property would be unfair to him. Wisdom therefore required imposing it upon the 'aqila, by way of assistance and support for the killer, to lighten his burden when he has an excuse for his act; the expiation remains his alone (al-Mughni 8/297, al-Mubdi' 8/328).
Imam Abu Bakr al-Jassas, may Allah have mercy on him, said: if it is said: Allah the Most High said:
« No soul earns except against itself, and no bearer of burden bears the burden of another »
Surah al-An'am, 164
and the Prophet, may the peace and blessings of Allah be upon him, said:
« A man is not seized for the offense of his father nor for the offense of his brother. »cited in al-Jassas's Ahkam al-Quran 3/194 and 195
and he said to Abu Ramtha and his son:
« He commits no offense against you, and you commit none against him. »cited in al-Jassas's Ahkam al-Quran 3/194 and 195
and reason likewise forbids seizing a person for the sin of another, it is answered: as for His word, glorified be He: « No soul earns except against itself, and no bearer of burden bears the burden of another » (Surah al-An'am, 164), it contains no proof against the obligation of the diya upon the 'aqila, for the verse only negates that a man be seized for the sin of another; now, imposing the diya upon the 'aqila is not a seizing of them for the offender's sin. According to us, the diya lies upon the killer, and these people were commanded to join him in bearing it, by way of assistance to him, without the sin of his offense being imputed to them. Allah has made rights obligatory in the wealth of the rich for the poor, without imputing to them a sin they did not commit, but by way of assistance; He commanded maintaining the ties of kinship by every possible means, and commanded kindness to parents: all these are matters recommended for mutual aid and the setting right of relations. Likewise the 'aqila was commanded to bear the diya of the accidental killer by way of assistance, without unfairness to them: each man among them is in fact charged only three or four dirhams, taken from their stipends if they are people of the register, and deferred over three years; this is among the noble traits of character to which they were exhorted.
Bearing diyas was well known among the Arabs before Islam, and it counted among their fine deeds and noble traits of character. The Prophet, may the peace and blessings of Allah be upon him, said:
« I was sent to perfect the noble traits of character. »cited in al-Jassas's Ahkam al-Quran 3/194 and 195
It is thus an act approved by reason and accepted in character and custom. Likewise, the words of the Prophet, may the peace and blessings of Allah be upon him: « A man is not seized for the offense of his father nor for the offense of his brother » and « He commits no offense against you, and you commit none against him » do not negate the obligation of the diya upon the 'aqila, in the manner we have described regarding the meaning of the verse: none is blamed for another's deed nor pursued for another's sin.
The obligation of the diya upon the 'aqila has several grounds, acceptable and approved by reason:
the first: it is permissible that Allah the Most High legislate, as an original ruling, an obligation of wealth upon them for this man, without any killing proceeding from him, just as He made the sadaqat obligatory in the wealth of the rich for the poor;
the second: the diya is placed upon the 'aqila in consideration of aid and assistance; this is why our companions imposed it upon the men of his register rather than his relatives, for they are the people of his aid. Do you not see that they aid one another in fighting, protection and defense of the household? Since they are mutually aiding in fighting and protection, they were commanded to aid and cooperate with one another in bearing the diya, so that they be equal in bearing it as they are equal in protecting one another in battle;
the third: imposing the diya upon the 'aqila removes rancor and enmity that may previously exist among them, and it invites affection and the setting right of relations. Do you not see that if two men were in enmity and one of them bore on behalf of the other what had befallen him, this would lead to the removal of enmity, to affection and the setting right of relations? Likewise, if someone intended harm against a man and another aided him and protected him from it, the rancor of his heart would slip away and he would return to soundness of breast, allegiance and aid;
the fourth: when one of them bears the offense of another, the killer bears for him if he too commits an offense: his bearing of the offense for him is not lost, but has a praiseworthy effect, the like of which he merits against him if an offense proceeds from him.
These are grounds all approved by reason and undeniable. Only the atheist who clings to such things is brought to it by the narrowness of his capacity, his lack of knowledge and his turning away from consideration and reflection; praise be to Allah for the beauty of His guidance and His grant (Ahkam al-Quran 3/194 and 195).
Imam al-Kasani, may Allah have mercy on him, said: Abu Bakr al-Asamm said: the killer bears it without the 'aqila, for no one may be seized for the sin of another; Allah, exalted be He, said: « No soul earns except against itself » (Surah al-An'am, 164), and He said, magnified be His majesty: « No bearer of burden bears the burden of another » (Surah al-An'am, 164); this is why the 'aqila does not bear compensation for property, nor what is below half a tenth of the diya; likewise here. Our proof: he, may the peace and blessings of Allah be upon him, ruled the ghurra upon the 'aqila of the woman who struck; likewise our master Umar, may Allah be pleased with him, ruled the diya upon the 'aqila in the presence of the Companions, may Allah be pleased with them, without any rejection. As for the noble verse, we affirm what it states; but why did you say: « Placing the burden upon the 'aqila is a seizing without sin »? For guarding the killer is obligatory upon his 'aqila, and if...
The diya differs according to persons: the diya of a man differs from that of a woman, and the diya of a Muslim differs from that of the man of the Book and the Zoroastrian.
The people of knowledge unanimously agree that the diya of a free Muslim man is one hundred camels, according to the words of the Prophet, may the peace and blessings of Allah be upon him:
« For a life, one hundred camels. »reported by Malik in al-Muwatta (1547) and an-Nasa'i (4857)
In one wording:
« For a believing life, one hundred camels. »reported by Malik in al-Muwatta (1547) and an-Nasa'i (4857)
Imam Ibn al-Mundhir, may Allah have mercy on him, said: « They unanimously agreed that the diya of a man is one hundred camels » (at-Tamhid 17/341).
Imam al-Imrani, may Allah have mercy on him, said: the diya of a free Muslim man is one hundred camels, because it was reported that the Prophet, may the peace and blessings of Allah be upon him, wrote in the letter which...
...if they do not guard him, they have been negligent, and their negligence is a sin. Moreover, the killer kills only with the backing of his clan: they are as if partners with him in the killing. Moreover, the diya is considerable wealth: imposing all of it upon the killer would be unfair to him; the 'aqila therefore shares in bearing it by way of relief, and he deserves relief because he erred. In this it differs from compensation for property: compensation for property is not usually considerable, so the need for relief does not arise; and what is below half a tenth of the diya follows the rule of compensation for property (Bada'i' as-Sana'i' 7/255).
The people of knowledge unanimously agree that the diya of accidental killing, when it is to be paid in camels, is one hundred, according to the words of the Prophet, may the peace and blessings of Allah be upon him:
« There are, for a life, one hundred camels. »reported by Malik in al-Muwatta (1547) and an-Nasa'i (4857)
Ibn Abd al-Barr, may Allah have mercy on him, said in at-Tamhid (17/338 and 339): « There is no disagreement from Malik on sending this hadith with this chain; it has been reported with a connected chain through a sound route, and it is a letter well known among the scholars of the Prophet's biography, whose contents are known to the people of knowledge with a knowledge whose fame dispenses with the chain, for its transmission resembles mass transmission, people having received it with acceptance and recognition. »
Ibn Abd al-Barr, may Allah have mercy on him, said: « Their consensus is that the owners of camels owe, for the diya of a life destroyed by mistake, one hundred camels; there is no disagreement among the scholars of the Muslims on this, nor do they differ that the Messenger of Allah, may the peace and blessings of Allah be upon him, set it thus » (at-Tamhid 17/341).
Imam al-Imrani, may Allah have mercy on him, said: the diya of a free Muslim man is one hundred camels, because it was reported that the Prophet, may the peace and blessings of Allah be upon him, wrote in the letter which...
...a settlement, it is over three years. Ash'ath reported from ash-Sha'bi, and al-Hakam from Ibrahim, that they said: « The first to institute the stipend was Umar ibn al-Khattab, who fixed in it the full diya over three years, two thirds of the diya over two years, half over two years, and what is below that in its year. » Abu Bakr said: this was widely transmitted from Umar, and none of the early generation contradicted him; the jurists of the great cities agreed upon it, and it became a consensus that admits no disagreement (Ahkam al-Quran 3/195).
Imam Ibn Qudama, may Allah have mercy on him, said: « There is no disagreement among them that it is deferred over three years: Umar and Ali, may Allah be pleased with them both, placed the diya of accidental killing upon the 'aqila over three years, and we know of no Companion who contradicted them; the people of knowledge followed them in this. It is wealth due by way of assistance: it is therefore not immediately due, like zakat. Every diya borne by the 'aqila is due in deferred form, for the reason we have mentioned; every diya not borne by the 'aqila is immediately due, for it is the substitute for what is destroyed: it is immediately incumbent upon the destroyer, like the values of destroyed things. It differs from what the 'aqila bears, for that is due by way of assistance, and deferral was imposed upon it to relieve the one who bears it; it was made an exception to the principle of deferral just as it was made an exception to the principle of imposing it upon other than the offender » (al-Mughni 8/297).
The jurists differed on the killer who commits the offense: does he bear any part of the diya with the 'aqila, being as one of them, or does he bear no part at all, the whole of it lying upon the 'aqila?
The Hanafis hold that the killer is one of the 'aqila: there is due from him of the diya the like of what is due from each member of the 'aqila; he thus joins them in the diya and is as one of them. This is because imposing it upon the 'aqila is to ward off ruin and destruction from the killer and to lighten his burden, which applies to the whole, not the part. Then, the obligation upon them is in consideration of aid, and there is no doubt that he aids himself just as another aids him; and just as he has an excuse and is not held to account by the Law, the 'aqila is likewise not held to account for his act; Allah the Most High said: « No bearer of burden bears the burden of another » (Surah al-An'am, 164); and whoever has committed no offense is further from being held to account than the excused offender: if we impose upon each member of the 'aqila a part of the diya, then imposing the like upon him is more deserving. It is also that the place of fulfillment of the obligation is the stipend that comes to them by way of grant: in this they are as one single self; just as the stipend is paid to other than the killer, it is paid to the killer (al-Mabsut 27/126, al-Jawhara an-Nira 5/198).
Imam az-Zayla'i, may Allah have mercy on him, said: « The killer is as one of them », that is, as one of the 'aqila, for he is the killer: there is no sense in excluding him and holding another responsible in his place. Ash-Shafi'i, may Allah have mercy on him, said: nothing of the diya is due from the killer, for he has an excuse; hence the whole is not due from him, and likewise the part, for the part does not contradict the whole.
We reply: imposing the whole would be unfair to him, but not so the part. Moreover, it is due in consideration of aid, and he aids himself as much as another aids him, rather more: he is therefore more deserving that it be imposed upon him; and if the one who errs has an excuse, the innocent one has more. Allah the Most High said: « No bearer of burden bears the burden of another » (Surah al-An'am, 164). The absence of the obligation of the whole does not negate the obligation of the part: do you not see that the whole is not due from any single one of the 'aqila, and yet the part is due from him? It is thereby clear that judging the part by the whole is invalid (Tabyin al-Haqa'iq 6/178 and 179).
The majority of jurists, Malikis, Shafi'is and Hanbalis, hold that the offender bears nothing of the diya. Ibn Qudama, may Allah have mercy on him, said: nothing of the diya is incumbent upon the killer; this is the view of Malik and ash-Shafi'i. Abu Hanifa said: he is as one of the 'aqila, for it was made obligatory upon them as assistance to him: they should not bear more than he in it. Our proof: what Abu Hurayra reported, that the Prophet, may the peace and blessings of Allah be upon him, ruled:
« He ruled the diya of the woman upon her 'aqila. »agreed-upon hadith, reported by al-Bukhari and Muslim
This entails that he ruled all of it upon them. Moreover, he is a killer from whom the diya is not due: the part is therefore not due from him either, as when the ruler commands him to kill a man and he kills him believing it rightful, then it appears he was wronged. Moreover, the expiation is incumbent upon the killer from his own wealth, and that equals his share of the diya and more: there is therefore no need to impose anything of the diya upon him (al-Mughni 8/297, al-Jawhara an-Nira 5/198).
Imam Ibn Hubayra, may Allah have mercy on him, said: « They differed on whether the offender joins the 'aqila and pays with them: Abu Hanifa said that he is as one of them; there is due from him what is due from each of them. »
The Shafi'is say: the diya is the wealth due for an offense against a free person, in his life or below it; it is a substitute for retaliation (an-Najm al-Wahhaj 8/455, Mughni al-Muhtaj 5/291, Tuhfat al-Muhtaj 10/433). The Hanbalis say: it is the wealth paid to the victim of an offense or to his guardian because of an offense (Kashshaf al-Qina' 6/3, Sharh Muntaha al-Iradat 6/75, Matalib Uli an-Nuha 6/75).
The obligation of the diya in killing embodies a far-reaching wisdom: preserving the structure of the human being from destruction and his blood from being shed with no consequence (al-Ikhtiyar 5/44).
The diya is obligatory by the Book, the Sunna and consensus.
As for the Book: the word of Allah the Most High:
« Whoever kills a believer by mistake must free a believing slave and pay a diya delivered to his family »
Surah an-Nisa, 92
As for the Sunna: the hadith of an-Nasa'i and Malik in al-Muwatta: the Prophet, may the peace and blessings of Allah be upon him, wrote for Amr ibn Hazm a letter to the people of Yemen containing the legal shares, the Sunan and the diyas, in which he said:
« For a life, one hundred camels; for the nose entirely cut off, one hundred camels; for the wound reaching the membrane of the brain, one third of the diya; for the penetrating wound, the same; for the eye, fifty; for the hand, fifty; for the foot, fifty; for every finger from there, ten camels; for the tooth, five; for the wound laying bare the bone, five. »reported by Malik in al-Muwatta (1547) and an-Nasa'i (4857)
Ibn Abd al-Barr, may Allah have mercy on him, said in at-Tamhid (17/338 and 339): « There is no disagreement from Malik on sending this hadith with this chain; it has been reported with a connected chain through a sound route, and it is a letter well known among the scholars of the Prophet's biography, whose contents are known to the people of knowledge with a knowledge whose fame dispenses with the chain, for its transmission resembles mass transmission, people having received it with acceptance and recognition. »
And according to al-Zuhri, from Abu Bakr ibn Muhammad ibn Amr ibn Hazm, from his father, from his grandfather: the Messenger of Allah, may the peace and blessings of Allah be upon him, wrote to the people of Yemen a letter containing the legal shares, the Sunan and the diyas, and sent it with Amr ibn Hazm; it was read to the people of Yemen. This is its copy:
« From Muhammad the Prophet, may the peace and blessings of Allah be upon him, to Shurahbil ibn Abd Kullal, to Nu'aym ibn Abd Kullal and to al-Harith ibn Abd Kullal, to the representatives of Dhi Ru'ayn, Ma'afir and Hamdan. To proceed: it was in his letter that whoever deliberately kills a believer, with proof, is subject to retaliation unless the victim's heirs consent; that for a life the diya is one hundred camels; for the nose, if the cutting is complete, the diya; for the tongue, the diya; for the two lips, the diya; for the two testicles, the diya; for the male organ, the diya; for the back, the diya; for the two eyes, the diya; for a single leg, half the diya; for the wound reaching the membrane of the brain, one third of the diya; for the penetrating wound, one third of the diya; for the fracture displacing bone, fifteen camels; for every finger of the hands and feet, ten camels; for the tooth, five camels; for the wound laying bare the bone, five camels; that a man is killed for a woman; and that upon the people of gold is one thousand dinars. »weak hadith, reported by an-Nasa'i (4853) and al-Hakim in al-Mustadrak (1447)
Imam al-Imrani, may Allah have mercy on him, said: there is no disagreement in the community on the prohibition of killing without right (al-Bayan 11/297). Imam an-Nawawi, may Allah have mercy on him, said: al-Baghawi said: it, that is, killing, is the gravest of the major sins after disbelief; ash-Shafi'i explicitly stated this (Rawdat at-Talibin 6/129). Ibn Qudama, may Allah have mercy on him, said: the Muslims unanimously agree on the prohibition of killing without right (al-Mughni 8/207).