If one heir pardons, does the remaining right transfer to blood money (Diyah) for the non-pardoning heirs?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
When one heir pardons, the remaining heirs are entitled to their share of the blood money, whether the pardon was unconditional or conditional upon receiving Diyah. This is the view of Abu Hanifa and Al-Shafi'i, and no known dissenting opinion exists among those who agree that Qisas falls upon pardon. This is because the right to Qisas lapsed without the consent of the remaining heirs, thus establishing their right to compensation, similar to cases where the killer inherits part of the victim's blood or the killer dies. The right to Qisas is a shared right among all heirs; therefore, its nullification by one who has the authority to nullify it takes effect upon the whole, as it is indivisible, like divorce or manumission. Since the right is communal and indivisible, the act of one party in forfeiting it binds the others, similar to the manumission of a jointly owned slave. Since a woman is one of the rightful claimants, her pardon causes the lapse, just as a man's pardon does.
Supporting text
A narration attributed to 'Umar ibn Al-Khattab suggests that when the wife of the victim, who was the sister of the killer, pardoned her share, 'Umar declared the victim set free (from Qisas). In another narration involving a man who killed his wife's lover, when some of the victim's brothers pardoned, 'Umar ruled Diyah for the rest. This suggests that the pardon of one party does not necessarily extinguish the right to Diyah for the others, and the statement that Qisas is indivisible might not fully apply when Diyah is sought as a substitute.