There is no dispute among the jurists that the expiation (kafārah) stipulated by Allah for the unintentional killing of a free person is obligatory. They differ, however, on two points: whether an expiation is owed for intentional homicide, and whether it is owed for the accidental killing of a slave. Mālik obligates it only for the mistaken killing of a free person, excluding deliberate murder; al-Shāfiʿī, by an even stronger rationale, makes it obligatory in cases of intentional killing as well. In Mālik’s view, however, intentional killing in this regard follows the same ruling as accidental killing.
They also disagreed about aggravating the diyah during the Sacred Months or within the Sacred Sanctuary. Mālik, Abū Ḥanīfah, and Ibn Abī Laylā maintained that the diyah is not aggravated in either circumstance. Al-Shāfiʿī held that it is to be aggravated in both situations, whether the offense involves taking a life or causing bodily injury. Reports from al-Qāsim ibn Muḥammad, Ibn Shihāb, and others state that one adds an amount equal to one-third of the diyah, and this is likewise transmitted from ʿUmar. According to al-Shāfiʿī, the same increase applies to anyone who kills a close relative whose blood is inviolable.
Mālik and Abū Ḥanīfah rely on the general tenor of the revealed texts that fix the diyahs; whoever claims an exception must present evidence—especially since the scholars agree that the expiation itself is not aggravated for killings committed in the Sacred Months or the Sacred Precinct. Al-Shāfiʿī’s proof is that the aggravation is reported from ʿUmar, ʿUthmān, and Ibn ʿAbbās.
When a statement from the Companions contravenes legal analogy, it must be deemed based on direct revelation. Its departure from analogy lies in the fact that aggravating penalties for an act committed inadvertently appears remote from the principles of the Sharʿiah. The opposing camp may reply, however, that an analogy can indeed be drawn, given the Sharʿiah’s exaltation of the Sanctuary and its unique imposition of liability for game hunted therein.