Who bears the liability (Diyya) if a judge executes a prescribed penalty based on the testimony of two witnesses who are later found to be non-Muslims, immoral persons (Fasiq), or slaves?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
If a judge executes a penalty such as amputation or killing based on the testimony of two individuals who are later discovered to be disbelievers, immoral persons, or slaves (or only one of them), the witnesses themselves bear no financial liability. This is because they maintain that their testimony was truthful, whereas the issue lies with the disqualification of their testimony by religious law. The liability rests upon the judge or the appointing Imam who carried out the judgment, as they ruled based on testimony that was inadmissible. The judge is not subject to Qisas because the error was unintentional.
Supporting text
There are two reported opinions regarding the location of the Diyya payment. One opinion states it should be paid from the public treasury (Bayt al-Mal) because the judge acts as a deputy and agent for the Muslims, and the agent's error is the responsibility of the principal. This is also favored because frequent judicial errors would cause undue hardship if the burden fell on the judge's 'Aqilah (blood relatives). The second opinion holds that the Diyya falls upon the judge's 'Aqilah, payable in installments, as evidenced by an incident involving 'Umar, who, upon discovering an error, commanded the responsible party to distribute the compensation among his people (his 'Aqilah), which would not occur if it came from the Bayt al-Mal.