If payment cannot be obtained from the public treasury, is the killer liable for the *diyah*?
General Chapter
Al-Mughni
Book of Blood-Money (Diyyāt)
Primary text
If taking from the public treasury is impossible, then nothing is incumbent upon the killer. This is one of Al-Shafi'i's two opinions. This is because *diyah* is primarily incumbent upon the *aqilah* in the first instance, evidenced by the fact that no one else is demanded payment from, and their bearing the liability is not contingent upon their acceptance or consent. If some of the *aqilah* are found, they bear their proportional share, and the rest is dropped, with nothing due from anyone else.
Supporting text
The second opinion of Al-Shafi'i maintains that the *diyah* is incumbent upon the killer if the *aqilah* cannot bear it. This is supported by the general verse, {And a *diyah* presented to his family} (Quran 4:92), and because the evidence necessitates that the liability rests on the perpetrator to compensate for the loss inflicted. Since the *aqilah* only stands in his place, if they fail, the liability reverts to him. This is deemed preferable to allowing the blood of a free person to be wasted, which is against the principles of Shariah. This liability is analogous to cases where the *aqilah* cannot pay, such as for a killer who is a renegade or a *dhimmi* without an *aqilah*, where the *diyah* falls upon the killer's wealth.