[1563] diyāt is the plural of diyah a name for [indemnification; or] restoration of the like, or of the value, of a thing that has perished (Lane’s Arabic-English Lexicon) which is obligatory in exchange for [killing] a human being or [for damaging] a part of one. ʿAllāmah az-Zubaydī said, “Know that the value of the compensatory payment is the value of the camels that are the original compensatory payment which the Messenger of Allah evaluated for the people of the towns because of the high value of the camel to them. The compensatory payment amounted to eight hundred gold dinars or eight thousand silver dirhams in his time, and the matter continued like that until the time of ʿUmar. At that time the camel became more valuable and the compensatory payment’s value reached one thousand gold dinars and ten thousand silver dirhams, and that is the verdict of our people.
[1564] Garments held for trade. The set of garments consists of a large cloth wrapped around the lower half of the body (izār) and an over garment for the whole body (ridā).
[1565] Abū Yūsuf narrated it on p.[221].
[1566] And he said that the measures are only valid with something whose value is known not with something unknown, and the value of these things is unknown [i.e., their value fluctuates, thus, according to him, one should not pay the compensatory payment on them. – Ed.]
[1567] i.e., a complete compensatory payment [as for a fatality] and it is thus in the writing which the Messenger of Allah wrote for ʿAmr ibn Ḥazm as is narrated in an-Nasā’ī.
[1568] asnān is the plural of sinn and is a measure of age. [Each lot of camels are of different ages. – Trans.]
[1569] Quasi-deliberate intent is, for example, that someone does intend to strike but not to kill or cause injury. – Trans.
[1570] And Abū Yūsuf along with him.
[1571] Thirty camels which have entered their fifth year, thirty camels which have entered their fourth year and forty six-year old camels all of which are pregnant she-camels, and ash-Shāfiʿī adhered to this.
[1572] ḥiqqah is thus named because it is right (ḥaqq) for riding and carrying burdens, and it is the one that has begun its fourth year.
[1573] jadhaʿah is the camel which has entered its fifth year, recognised by a quality in its teeth that expert camel owners know.
[1574] bāzil camels are those that have completed eight years and begun the ninth, at which time its canine teeth emerge and its strength is made complete. After that it is called a one-year bāzil and a two-year bāzil. (An- Nihāyah).
[1575] In this passage the “lot” is defined as twenty-five of each age. The bint makhāḍ: daughter of a pregnant camel, has begun its second year and is named thus because ordinarily its mother is pregnant with another.
[1576] bint labūn: daughter of a suckling camel, has begun its third year and is thus named because ordinarily its mother has given birth to another and is suckling it.
[1577] Abū Yūsuf narrated it on p.[219].
[1578] Similarly, middle incisors and molar teeth are the same, and all molar teeth are the same.
[1579] Abū Yūsuf narrated it on p.[219].
[1580] simḥāq is that which penetrates to the simḥāq, a fine skin between the flesh and bone of the head.
[1581] bāḍiʿah is that wound which cuts the skin.
[1582] The ʿādil “just and knowledgeable person”, has specific qualifications in the fiqh. – Trans.
[1583] jā’ifah is that wound which penetrates into the inside whether through the chest, belly, back or sides.
[1584] āmmah is that wound penetrates inside the head in which there is the brain.
[1585] munaqqilah or munaqqalah is the wound that removes bone after breaking it.
[1586] mūḍiḥah is the wound that exposes the bone to view.
[1587] Abū Yūsuf narrated it on p.[220].
[1588] shijāj is the plural of shajjah and lexically it is used particularly for wounds to the face or head. Other wounds are called jirāḥ.
[1589] mutalāḥimah in the Magrhib is the shajjah wound which splits the flesh but not the bone which then heals over after being split. Al-Azharī said, “The most appropriate thing is to call the lāḥimah that which cuts the flesh and it is only called that according to what it leads to.”
[1590] ashfār is the plural of shufr and denotes the place where the eyelashes grow and are the borders and edges of the eyes. The hairs that grow there are called eyelashes, so what is meant by ashfār is the eyelashes since it is the hair that grows and not the skin. Since it is obligatory to pay the entire compensatory payment for all of the ashfār, then for each one there is a quarter payment.
[1591] Splitting it.
[1592] i.e., it is not to be paid by his ʿāqilah, the paternal relatives who would ordinarily carry the burden of compensatory payments.
[1593] Abū Yūsuf narrated it on p.[222].
[1594] Since in retaliation there has to be a correspondence [between the injury and the retaliation] and that is not possible here since the blind person’s eye has no light in it [cannot see].
[1595] Ibn Abī Shaybah narrated the like of it in the Muṣannaf, vol.[5], p.[44].
[1596] And if it was quasi-intentional homicide then the ʿāqilah has to pay the ransom.
[1597] Unintentional acts are of two kinds: unintentional in terms of purpose in that one shoots at a person thinking him game but discovering him to be a human, or thinking him to be an enemy combatant but discovering him to be a Muslim, or unintentional in terms of the act, such as shooting at a target and striking a human being. That necessarily requires expiation, and the ransom is due from the ʿāqilah but there has been no wrong action done.
[1598] Made from metal.
[1599] akhmās pl. of khims: a kind of burdah cloak, or alternatively a pl. of khumus: a fifth.
[1600] Because of His words, exalted is He, “... retaliation is prescribed for you in the case of people killed,” (Sūrat al-Baqarah: 177) and he is guilty of a wrong action because of His words, exalted is He, “As for anyone who kills a mu’min deliberately, his repayment is Hell,” (Sūrat an-Nisā’: 92)
[1601] Unless he makes some agreement with the guardians.
[1602] Since it is their right [to retaliate, accept compensation or pardon him].
[1603] With something not appropriate for killing someone such as a quern- stone (millstone) and the like.
[1604] Such as if one strikes someone with a large stone or a large piece of stone, then that is intentional according to the two of them. Quasi- intentional according to the two of them is that one deliberately strike someone with something which would not ordinarily kill someone such as a small staff, as long as one does not strike again and again.
[1605] It entered his innards, its head protruding on the other side.
[1606] The ʿāqilah are those who pay the compensatory payment – [and this term is used] because ʿaql means compensatory payment – and they are the people of the register (dīwān), if the killer is from the people of the dīwān. Whoever is not from the people of the register, then his ʿāqilah are his tribe. When ʿUmar recorded the registers (dīwān) he made the people of the register responsible for compensatory payments. The dīwān is the register in which is recorded the people who receive stipends, and the army. Ash-Shāfiʿī said that one’s ʿāqilah is one’s tribe.
[1607] The dīwān register was initiated by Sayyidunā ʿUmar ibn al-Khaṭṭāb and in it was recorded those who received stipends and the members of the army. It is they who pay the compensatory payment if the person who committed the act of violence is also one of the people of the register. Otherwise, if he is not one of the people of the register, his tribe pay the compensatory payment. – Trans.
[1608] aʿṭiyyah is the plural of ʿaṭā’ which is a name for something given.
[1609] This hadith is narrated from Ibn ʿAbbās attributed [as a marfūʿ] to the Prophet , and also as a statement of his own without attribution to the Prophet (mawqūf).
[1610] i.e., the compensatory payment for a wound which lays bare the bone, and its compensation is one twentieth of the complete compensatory payment.
[1611] Similarly, if a father deliberately kills his son, then the compensatory payment comes out of his own wealth.
[1612] The ʿāqilah do not pay compensation for what has become necessary because of a negotiation nor that which derives from the confession of the guilty person unless the confession contains the requirement that the compensation be paid over three years. In negotiated payment for deliberate homicide the payment is due immediately unless it is made a condition of negotiations that it be paid after a period of time in which case it has to be done so.
[1613] Abū Yūsuf narrated it on p.[221].
[1614] Since what is established by the testimony of witnesses is the same as that which is established by direct witnessing.
[1615] Since death because of a blow is only recognised if the wounded man took to his bed until he died.
[1616] afīdu is in the first person singular and derives from fidyah: ransom or compensatory payment.
[1617] But if it was deliberate and they testified that he struck him with an implement which wounded him, then there is retaliation for that.
[1618] However, in al-Hidāyah there is, “For every tooth five camels are due, i.e., a twentieth of the full compensatory payment [for killing someone], because of the hadith of Abū Mūsā al-Ashʿarī .”
[1619] ʿajmā’ is the masculine of aʿjam and refers to every living creature other than the human being whichever is not articulate, and what is meant here is the dumb beast.
[1620] maʿdin: a mine, a place from which are brought out precious and semi-precious stones and minerals such as gold, silver and copper etc. It derives from ʿadana to dwell or reside in a place.
[1621] rikāz: that which Allah, exalted is He, has buried in mines, i.e., originated. Mālik, ash-Shāfiʿī and others took it to mean wealth buried in the earth and they said that as for minerals which Allah has created in the earth there is no fifth taken from them, but there is zakāh when it reaches the measure of the minimum amount of wealth (niṣāb) from which zakāh is taken. As for our people, they said that rikāz includes minerals from mines as well as buried treasure on all of which a fifth has to be paid, which is supported by the hadith of Abū Hurayrah which he ascribed to the Prophet [as a marfūʿ], “From precious minerals a fifth is due.” Someone asked, “What are precious minerals, Messenger of Allah?” He said. “What Allah created in the earth on the day it was created.” Al- Bayhaqī mentioned it.
[1622] Al-Bukhārī narrated it as a connected marfūʿ hadith from Abū Hurayrah under “date-crop sharing (musāqāh)” in the chapter on “someone who digs a well on his own property does not stand surety,” and Muslim under “ḥadd punishments” in the chapter on “wounds caused by dumb beasts, mines and wells go uncompensated.”
[1623] hadar means void.
[1624] Struck him with the edge of its hoof.
[1625] Employer here only in the sense that he has made a specific contract with the man who does the work for a specific task, and not in the modern sense of an employer who hires a person paying him according to the hours, days, weeks and months worked. –Trans.
[1626] Al-Bayhaqī narrated from Muʿādh ibn Jabal who said, “The Messenger of Allah said, ‘The compensatory payment of a woman is a half that of a man.”
[1627] See similar traditions in the Muṣannaf of Ibn Abī Shaybah, vol.[5], pp.[411]-2.
[1628] And ash-Shāfiʿī adhered to this verdict.
[1629] Meaning that if the compensation amounts to a third of a full compensatory payment or less than that [third] then men and women are the same in that respect. If it is more than a third, women take a half of what men take.
[1630] It is full because of the loss of the benefit of suckling and the withholding of the milk.
[1631] Abū Yūsuf narrated it on p.[220].
[1632] Meaning that for a wound that lays bare a slave’s bone a twentieth of his price is due because for a free man a twentieth of his full compensatory payment is due. The basic principle is that the proportion of the full compensatory payment of the free man is the same as the proportion of the price of the slave because the slave’s price is the equivalent of the free man’s compensatory payment.
[1633] In a narration of Abū Yūsuf, “And his injuries,” meaning the slave’s injuries, “are proportional to his price according to the proportionality of the free man’s injuries to his compensatory payment.” In another narration there is, “Everything for which the free man has compensatory payment, the slave has his price. Everything for which the free man gets a half of his compensatory payment, the slave has a half of his price.”
[1634] A free man’s full compensatory payment is ten thousand dirhams. Whoever kills a slave unintentionally must pay his price which must not exceed ten thousand dirhams. If the slave’s price is ten thousand dirhams or more the settlement is ten thousand dirhams less ten. This is according to Abū Ḥanīfah and Muḥammad, but according to Abū Yūsuf and ash- Shāfiʿī his price must be paid whatever amount it is.
[1635] Because the value of the free man is estimated at ten thousand dirhams and we reduce it for the slave because of the lower standing that he has.
[1636] Because of the tradition of ʿAbdullāh ibn ʿAbbās and Ibn Masʿūd , which is, “The price of the slave may not amount to the full compensatory payment of a free man, and one reduces it by ten dirhams.”
[1637] For example, if someone damages a slave’s eyes, then if the master wishes he may give the slave over to the guilty party and take his price from him, or he may retain him in which case he is owed nothing for the loss in value according to Abū Ḥanīfah . And the two of them said that if he wishes he may retain his slave and take a sum according to as much as the slave’s value has decreased, or if he wishes he may give the slave over and take his value.
[1638] For example, if before the injury the slave’s value was a thousand dirhams and afterwards it remained at five hundred, then the owner takes five hundred from the man who injured the slave because of his having reduced the value.
[1639] The crimes of a slave who is to be set free after his owner’s death (mudabbar) and umm walads are the responsibility of their owner from his own wealth and not the ʿāqilah because of that which is narrated from Abū ʿUbaydah ibn al-Jarrāḥ , that when he was the amir of Shām he gave the judgement that the crime of a mudabbar was the responsibility of his master.
[1640] Abū Yūsuf narrated it on p.[223].
[1641] It is contracted to take effect after the master’s death and is thus as if already having taken place. – Trans.
[1642] Their men [of the People of the Book] are the same as Muslim men, and their women [of the People of the Book] are the same as Muslim women in respect of homicide and anything less than that (ʿInāyah). Ash- Shāfiʿī said that the compensation for a Jew or Christian is four thousand dirhams and the compensation for a Zoroastrian is eight hundred dirhams. Mālik said the compensation for a Jew or Christian is six thousand dirhams. We have his saying , “The compensation for every one of them with a covenant in his covenant is one thousand dinars.” Abū Dāwūd narrated it in his Marāsīl.
[1643] ʿAbd ar-Razzāq narrated the like of it in the Muṣannaf, vol.[1], p.[95].
[1644] ʿAbd ar-Razzāq narrated the like of it in the Muṣannaf, vol.[10], pp.[95]- 96.
[1645] A city three miles from Kufa whose inhabitants were Christians.
[1646] ʿAbd ar-Razzāq narrated the like of it in the Muṣannaf, vol.[10], p.[101] in an abridged form.
[1647] Ad-Dāraquṭnī narrated it in his Sunan from Ibn ʿUmar . Ash-Shāfiʿī said that a mu’min may not be killed for a kāfir because of that which Abū Dāwūd narrated with this wording. Our people answered that a mu’min may not be killed for a kāfir except for one who has a covenant.