Murder and Injury - Unintentional
"It is unlawful for a believer to kill a believer except if it happens by accident. And he who kills a believer accidentally must free one Muslim slave and pay Diyat to the heirs of the victim except if they forgive him. If the victim is a Muslim belonging to a people at enmity with you, the freeing of a Muslim slave is enough. But if the victim belongs to an ally, Diyat shall also be given to his heirs and a Muslim slave shall also have to be set free. He who does not have a slave, must fast two consecutive months. This is from Allah a way to repent from this sin: He is Wise, All-Knowing. "(4:92-3)
In Islamic law, according to the Qur’an, the punishment of unintentionally murdering or wounding in some cases is Diyat and Atonement (Kaffarah), and in some cases only Atonement (Kaffarah) except if the wounded person or the heirs of the slain person forgive the criminal. In this case, life for life, wound for wound and limb for limb cannot be demanded from a person.
This law is based on three clauses:
- Firstly, if the murdered person is a Muslim citizen of an Islamic State or if he is not a Muslim but belongs to a nation with which a treaty has been concluded, it is necessary for the murderer who has not been forgiven to pay Diyat to atone for his sin and repent before the Almighty and free a Muslim slave as well.
- Secondly, if the murdered person is a Muslim and belongs to an enemy country, the murderer is not required to pay Diyat; in this case, it is enough that he only free a Muslim slave.
- Thirdly, in both these cases, if the criminal does not have a slave, he should consecutively fast for two months.
These are the directives as far as unintentional murder is concerned. But it is obvious that the directive of unintentionally injuring someone should also be no different. Hence, in this case also Diyat shall have to be paid and fasts shall have to be kept considering the amount of Diyat paid. For example, if the Diyat of a certain type of wound is fixed at one-third of the Diyat of murder, twenty fasts as atonement shall also have to be kept.
An important issue in these directives of intentional and unintentional murder is the amount of Diyat to be given and its methodology. In verse 92 of Surah Nisa quoted above, the words diyatun mussalamatun ila ahlihi are used. The word Diyat in these verses occurs as a common noun, about which we all know that its meaning is determined by its linguistic and customary usage, and by the context in which it is used. Nothing other than these are required. Therefore, in this verse Diyat means something which in the general custom and usage is called ‘Diyat’. And the words diyatun mussalamatun ila ahlihi simply mean that the family of the murdered person should be given what the general custom and linguistic usage term as ‘Diyat’.
In verse 178 of Surah Baqarah, where the directive of Diyat in case of intentional murder has been given, the word ma‘ruf [eng: custom) is used to qualify it: "Then for whom there has been some remission from his brother, [the remission] should be followed according to the Ma‘ruf and Diyat should be paid with goodness. (2:178)
It is evident from the above mentioned verses of Surah Nisa and Surah Baqarah that in case of intentional as well as un-intentional murder, the Qur’an wants Diyat to be paid according to the custom and tradition of the society. It has not prescribed any specific amount for Diyat nor has it directed the Muslims to discriminate in this matter between a man or a woman, a slave or a free man and a Muslim or a non-Muslim. The Prophet (sws) and his Rightly Guided Caliphs decided all the cases of Diyat according to the customs and traditions of the Arabian society during their own times
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