What is the right of the guardian who did not participate in killing the perpetrator, after the right to Qisas has lapsed?
Chapter on Retaliation (Qawad)
Al-Mughni
Book of Wounds
Primary text
The guardian who did not participate in the killing is entitled to his share of the blood money (Diyah), because his right to Qisas lapsed without his consent, analogous to the killer dying or some guardians pardoning the killer. There are differing scholarly opinions regarding whether this compensation is taken from the killer's estate or from the one who killed the perpetrator (the partial killer). One opinion holds that the recovery is against the one who killed the perpetrator because he destroyed the subject of the right, similar to destroying a deposit. The opposing view states the recovery is from the perpetrator's estate, similar to a foreigner destroying the subject or a partner pardoning the Qisas.
Supporting text
The opinion favoring recovery from the estate argues that the concept of destroying the subject of the right is invalidated by cases where a lessee, a debtor, or a spouse destroys the subject, or where a non-relative destroys it. They differentiate this from a deposit, which is jointly owned. They assert that the deceased perpetrator is not owned by the victim, but rather the victim has a right against him, aligning it with the case of killing a debtor. This leads to the conclusion that the perpetrator's heirs reimburse the killer for their testator's blood money, minus the portion of the right belonging to the partial killer.