#1069: What Is Obligatory Upon A Muslim Who Killed A Kāfir By Way Of Accident?
Assalamualaikum Warahmatullahi Wabarakatuh.
Please what is the Islamic ruling on a Muslim who mistakingly killed a Christian via car accident.
ANSWER:
Wa Alaykum Salam Warahmatullah Wabarakaatuh.
Alhamdulillah.
What is apparent from your question is that you seek to know what is obligatory upon a Muslim who has killed a Kaafir by way of accident in terms of Kaffaarah and Diyya.
There are two scenarios in regard to this.
The first, that this Kaafir is one with whom there is a security of protection and whom it is not permissible for any Muslim to kill. This security of protection is that which acquired by way of one of the below three:
First, that there is a Pact of peace and no war for a specific period of time between the Muslims and the Leaders of the community to which the Kaafir belongs. This Kaafir is known as a Mu’aahad.
Second, that there is a contract this Kaafir has gone into which grants him permissibility to live in the lands of the Muslims, paying the Jizyah. This Kaafir is known as a Dhimmi.
Third, that this Kaafir has got a temporary passage to enter the lands of the Muslims for a particular temporary assignment or necessity. This is known as a Musta’aman and once he has gotten this guarantee of security passage, then it is not permissible to kill him.
As for this scenario, then the scholars differ as regards to this.
The first position is that the Muslim must pay the Diyyah in his regard if he kills him, and does not have to do the Kaffaarah. The Diyyyah in the case of a Kaafir is half the Diyyah of a Muslim. The Kaffaarah is the freeing of a Muslim Slave or fasting 2 months consecutively if no Muslim Slave that can be freed is found. This position holds that he pays the Diyyah to the families of the bereft but there is no Kaffaarah upon him.
The second position is that the Muslim must pay the Diyyah in this regards and also have to do the Kaffaarah.
The earlier position is that of Maalik and Al-Hasan Al-Basri rahimahumullaah, for they held that in the Verse, Allah said:
وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ
“And Whomsoever kills a Believer by mistake then he must free a Muslim Slave… ”
Allah specified that the one who is killed is a Believer.
The later position is that held by the majority of the Fuqahaa from the Hanafi, Shaafi’i and Hanbali Schools. Their argument in this regard is that Allah said:
وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ
“And if the one killed is from a people between whom and you (the Believers) is a covenant of security, then a Diyyah be paid and the freeing of a Muslim Slave”
They argued that the general reference to Security here restricts the portion of the verse referred to by the Maalikis.
The stronger position in this matter seems to be that of the majority that upon him is both Diyyah which is half that of the Muslim, and Kaffaarah which is the freeing of a Muslim Slave or Fasting for 2 months in consecutivity if no Muslim Slave is available. And the reason for this is the generality of the statement mentioned in the Verse we quoted in reference to covenant. And Allah knows best.
The second scenario is the situation where the Kaafir killed is not of those with whom the Muslims have a Covenent of Security. Then by consensus there is neither Diyyah nor Kaffaarah.
As for the Kuffaar in this land of ours, then there is no covenant of security between them, their leaders and the Muslims and their leaders and therefore none of these rulings is applicable. However, there may be need to compensate the family of the bereaved as the case may be.
And Allah knows best.
Barakallahu fikum
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