(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of Visitors to his Facebook Page "Fiqhi")
Answer to a Question: Blood Money (Diyah) in Accidental Killing
To: Hamzeh Shihadeh
Question:
Assalamu Alaikum. I have a question: It is mentioned in the book, The Penal Code (Nidham al-Uqubat), that killing is of four types. The fourth type is "that which is treated as accidental," defined as killing without the will of the actor. If it is without his will, how can he be required to pay blood money (diyah), given that the noble Hadith says that mistakes (khata’) are lifted from my Ummah?
Answer:
Wa Alaikum Assalam Wa Rahmatullahi Wa Barakatuhu,
What you are asking about is mentioned in the Penal Code in the following texts:
("Killing is of four types: intentional (amd), quasi-intentional (shibhu al-amd), accidental (khata’), and that which is treated as accidental. As for the intentional, it is clear from the words of Allah (swt):
وَمَن يَقْتُلْ مُؤْمِنًا مُّتَعَمِّدًا
“And whoever kills a believer intentionally” (QS An-Nisa [4]: 93).
As for the quasi-intentional, it is clear from what Abdullah bin Amr bin al-Aas narrated that the Messenger of Allah (saw) said:
ألا إن دِيَةَ الخطأ شبه العمد ما كان بالسوط مائة من الإبل منها أربعون في بطونها أولادها
“Behold, the blood money for the quasi-intentional accidental killing—that which is caused by a whip [or stick]—is one hundred camels, forty of which are pregnant.”
As for the accidental, it is clear from the words of Allah (swt):
وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً
“And it is not for a believer to kill a believer except by mistake” (QS An-Nisa [4]: 92).
As for that which is treated as accidental, it is a category of accidental killing, but the definition of accidental killing does not strictly apply to it, as its reality differs from the reality of a mistake. This is because a mistake is accompanied by the intent of the action itself, but the person errs in the target upon which the action falls. As for what is treated as accidental, it is not accompanied by the intent of the action at all; the action occurs from him without his will, so its reality is different from a mistake... Such as a sleeping person rolling over onto someone and killing them, or falling on someone from a height and killing them, or tripping and falling on someone and killing them... Therefore, its ruling is like the ruling of the first category of accidental killing; i.e., it necessitates a diyah of one hundred camels and necessitates an expiation (kaffarah), which is freeing a slave, and if he cannot find one, then fasting for two consecutive months.") End.
Now we come to the answer to your question:
The Hadith narrated by Ibn Hibban from Ibn Abbas that the Messenger of Allah (saw) said:
إِنَّ اللَّهَ تَجَاوَزَ عَنْ أُمَّتِي الْخَطَأَ وَالنِّسْيَانَ وَمَا اسْتُكْرِهُوا عليه
“Indeed, Allah has pardoned for my Ummah [their] mistakes, forgetfulness, and what they are coerced into,”
does not indicate what you suggested. This is because the meaning of the Hadith is that Allah (swt) does not hold the one who makes a mistake, the one who forgets, or the one who is coerced accountable—meaning that no sin (ithm) is incurred by their action because Allah (swt) has pardoned that. Thus, one who accidentally kills another, such as by firing a bullet at a bird but hitting a person, does not sin according to Shari'ah. Likewise, one who kills another through an act "treated as accidental," such as falling from a height and killing someone, does not sin according to Shari'ah because the Hadith applies to the action in both cases, so the sin is lifted from the doer... It seems that what led you to ask this question is your assumption that paying the diyah is a punishment (uqubah) for the act of killing, even though the act occurred without the actor's will but rather by force of circumstance, so you wondered how he could be punished.
The correct view is that the diyah in the case of accidental killing and that which is treated as accidental is not a punishment for the act of killing. What confirms this is that this diyah is obligatory upon the wealth of the aqilah (paternal relatives), who are the man’s asabah (male agnates): his brothers, uncles, and their sons, even if they are distant... even though they did not do anything at all. It is not obligatory upon the wealth of the killer who killed by mistake... If it were a punishment for his action, the diyah would have been obligatory from his own wealth, just as it is obligatory from the wealth of the killer in the case of intentional murder.
Among the Shari'ah evidences that the blood money for accidental killing is not from the killer's wealth but from the wealth of the aqilah is:
Ibn Majah narrated in his Sunan from al-Mughira bin Shu’bah, who said:
قَضَى رَسُولُ اللَّهِ صلى الله عليه وسلم بِالدِّيَةِ عَلَى الْعَاقِلَةِ
“The Messenger of Allah (saw) ruled that the blood money is to be paid by the paternal relatives (al-aqilah).”
I will also quote for you some of the statements of the jurists (fuqaha) who adopted this:
Abu Yusuf, the companion of Abu Hanifa, says in his book Al-Athar: ("...And accidental killing is when you intend one thing but hit another with a weapon; the diyah for it is upon the aqilah...")
It is stated in Al-Sunan al-Kubra by al-Bayhaqi: ("Ash-Shafi’i (rh) said: I do not know of any disagreement that the Messenger of Allah (saw) ruled the diyah to be upon the aqilah, and this is more than just a specific Hadith, and we have mentioned it from the specific Hadiths.") Similarly, it is stated in Al-Umm by ash-Shafi’i: ("The blood money is of two types: the blood money for intentional killing is from the property of the perpetrator and not his aqilah, whether it is little or much; and the blood money for accidental killing is upon the aqilah of the perpetrator, whether that blood money is little or much.")
Ibn Qudamah said in Al-Mughni: ("Ibn al-Mundhir said: Everyone we have preserved [knowledge] from among the people of knowledge agrees that accidental killing is when the thrower throws at something but hits another; I do not know them to differ on this. This is the view of Umar bin Abdul Aziz, Qatadah, al-Nakha’i, al-Zuhri, Ibn Shubrumah, al-Thawri, Malik, ash-Shafi’i, and the Ashab al-Ra’y (Hanafi school). This type of mistake necessitates the diyah upon the aqilah and the expiation (kaffarah) from the wealth of the killer, without any disagreement known to us.")
In summary, the diyah in accidental killing is not a punishment for the killer in the sense that he sins due to the accidental killing; otherwise, it would have been from his wealth and not from the wealth of the aqilah who did not kill. Thus, the accidental killer does not sin for the accidental killing or what is treated as accidental, and the noble Hadith applies to him.
As for why the Shari'ah imposed the diyah upon the wealth of the aqilah in accidental killing and killing that is treated as accidental, it is for a wisdom that the Shari'ah has not clarified to us, and Allah knows best and is most wise.
Your brother, Ata Bin Khalil Abu al-Rashtah
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