In the case of unintentional killing (qatl al-khata), both blood money (diyah) and expiation (kaffarah) are obligatory. It is the killing that occurs without intent, or where the one who commits it is a child or insane.
Allah the Exalted says:
وَمَن قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ وَدِيَةٌ مُّسَلَّمَةٌ إِلَىٰ أَهْلِهِ [An-Nisa: 92]
“Whoever kills a believer by mistake, [the penalty is] the freeing of a believing slave and a compensation paid to his family.”
The expiation is that a believing slave be freed; if one does not have the means, then two consecutive months of fasting are to be observed.
Regarding the blood money for unintentional killing, it is narrated from Abdullah ibn Mas’ud (may Allah be pleased with him) that the Messenger of Allah ﷺ said:
فى دية الخطاء عشرون حقة ….
“In the case of unintentional killing, five kinds of camels are to be received as blood money: twenty of them are three years old, twenty are four years old, twenty female camels are two years old, twenty female camels are one year old, and twenty male camels are one year old.”
[Da’if: Da’if Abu Dawud: 984, Kitab al-Diyat: Bab al-Diyah Kam Hiya, Abu Dawud: 4545, Bayhaqi: 1386, Nasai: 43/8, Ibn Majah: 2631, Ahmad: 784/1, Bazzar: 1922, Daraqutni: 173/3, Ibn Abi Shaybah: 133/9]
Abdullah ibn Mas’ud (may Allah be pleased with him), Imam al-Zuhri, Imam Ikrimah, Imam al-Layth, Imam al-Thawri, Umar ibn Abd al-Aziz, Sulayman ibn Yasar, Imam Malik, the Hanafis and the Shafi’is (may Allah have mercy on them all), all hold the position stated in the previous hadith; only Imam Abu Hanifah (may Allah have mercy on him) holds that in the last category the male camels are those two years old.
[Al-Umm lil-Shafi’i: 113/6, Al-Ikhtiyar: 35/5, Al-Mughni: 15/12, Bidayat al-Mujtahid: 410/2, Nayl al-Awtar: 521/4, Subul al-Salam: 1607/3, Al-Fiqh al-Islami wa Adillatuh: 5735/7]
Uthman ibn Affan (may Allah be pleased with him) and Zayd ibn Thabit (may Allah be pleased with him) state that thirty camels aged four years, thirty aged three years, twenty male camels aged one year, and twenty female camels aged two years.
[Nayl al-Awtar: 521/4]
(Rajih) The narration from Abdullah ibn Mas’ud (may Allah be pleased with him) regarding the blood money for unintentional killing is da’if; therefore, a hundred camels of any kind may be given. The evidence for this is also the hadith in which Abdullah ibn Amr (may Allah be pleased with him) narrates that the Messenger of Allah ﷺ said:
ألا إن دية الخطأ وشبه العمد ما كان بالسوط والعصا مائة من الإبل منها أربعون فى بطونها أولادها
“The blood money for unintentional killing is [the same as that of] quasi-deliberate killing (shibh al-‘amd), which is [killing] with a whip or a stick: its blood money is a hundred camels, of which forty are pregnant she-camels.”
[Hasan: Sahih Abu Dawud: 3807, Kitab al-Diyat: Bab fi Diyat al-Khata Shibh al-Amd, Abu Dawud: 4547, Nasai: 40/8, Ibn Majah: 2627, Ibn Hibban: 6011/13, Bayhaqi: 68/8]
➊ Ali (may Allah be pleased with him) narrated that the Messenger of Allah ﷺ said:
رفع القلم عن ثلاثة عن النائم حتى يستيقظ وعن الصبي حتى يحتلم وعن المجنون حتى يعقل
“The pen is lifted from three: from the sleeper until he awakens, from the child until he reaches puberty, and from the insane person until he regains his reason.”
[Sahih: Sahih Abu Dawud: 3703, Kitab al-Hudud: Bab fi al-Majnun Yasriq, Abu Dawud: 4403]
Imam Malik (may Allah have mercy on him) said: According to us, it is agreed upon that there is no qisas against children, because their intentional killing is also considered unintentional killing until the prescribed punishments (hudud) become binding upon them and they reach puberty, and a child’s killing of someone results only in unintentional killing.
[Muwatta with al-Musawwa: 240/2]
This blood money is obligatory upon the paternal kinsmen.
Abu Hurayrah (may Allah be pleased with him) says that two women from the tribe of Hudhayl quarrelled, and one struck the other with a stone. The stone killed that woman and the child in her womb. Her heirs brought the case before the court of the Prophet ﷺ. The Messenger of Allah ﷺ decided that for the child in the womb, [the compensation is] a male or female slave:
وقـضـى بـديـة الـمـرأة على عاقلتها
“And he ﷺ imposed the blood money for the woman upon the heirs of the killer woman.”
In another narration these words occur:
وأن الـعـقــل على عصبتها
“And the blood money is obligatory upon her paternal relatives (asabah), other than the sharers (ashab al-furud).”
[Bukhari: 6909-6910, Kitab al-Diyat: Bab Janin al-Mar’ah wa Anna al-Aql ala al-Walid, Muslim: 1681, Tuhfat al-Ashraf: 52/11]
➋ In one narration, it is stated that one of two women from the tribe of Hudhayl killed the other, and each of them had a husband and children:
فجعل رسول الله صلى الله عليه وسلم دية المقتولة على عاقلة القاتلة وبرأ زوجها وولدها
“So the Messenger of Allah ﷺ imposed the blood money of the slain woman upon the heirs of the killer woman, and declared her husband and children free of it.”
[Sahih: Sahih Ibn Majah: 2143, Abu Dawud: 4575, Kitab al-Diyat: Bab Diyat al-Janin, Ibn Majah: 2248]
It is established that all the relatives of the killer share in paying the blood money, while the husband or wife and children are excluded from it.
The majority (Jumhur) hold this view.
[Al-Mughni: 770/7]
Some have opposed this on the basis of the following evidences:
➊ وَلَا تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَىٰ [Al-An’am: 164]
“No bearer of burdens shall bear the burden of another.”
➋ لا يجنى جان إلا على نفسه
“The one who commits a crime bears its consequence only upon himself.”
[Hasan: Sahih Tirmidhi, Tirmidhi: 3087, Kitab Tafsir al-Quran: Bab wa min Surat al-Tawbah]
They have reconciled these as follows:
① The rulings on blood money are specific exceptions to these texts.
② These evidences refer to the otherworldly reward, whereas blood money relates to worldly matters.
[Al-Rawdat al-Nadiyah: 654/2, Subul al-Salam: 1590/3]
❀ By paternal relatives (asabah) is meant those who are other than the children (ashab al-furud) and the dhawu al-arham.
[Bada’i al-Sana’i: 4666/10, Al-Mughni: 39/12, Nayl al-Awtar: 514/4]
