1456 - Issue: He said: "If a group participates in a killing, and the guardians wish to kill them all, they may do so. If they wish to kill some and pardon others, and take blood money from the remainder, they may do so."

As for their killing of everyone, we have mentioned that previously. As for their wish to kill some, they may do so, because everyone whom they have the right to kill, they have the right to pardon, just as in the case of a single perpetrator. Retaliation does not lapse for some by the pardon of others, because they are two distinct persons; thus, retaliation does not lapse for one of them by pardoning the other, just as if each one had killed a man. As for when they choose to take blood money from the killer, or from some of the killers, they are entitled to this without the perpetrator's consent. This is the position of Sa'id ibn al-Musayyib, Ibn Sirin, al-Shafi'i, 'Ata', Mujahid, Ishaq, Abu Thawr, and Ibn al-Mundhir. Al-Nakha'i, Malik, and Abu Hanifa said: The guardians have no right but to kill, unless they both agree on blood money with the perpetrator's consent. Another narration from Malik is in accordance with our position. They argued with the Almighty's saying: {Retaliation is prescribed for you} (1). What is prescribed is not subject to choice. Furthermore, it is a destroyed object for which a substitute is required, so its substitute must be fixed, like all other substitutes for destroyed objects. Our evidence is the Almighty's saying: {But if any forgiveness is made to him by his brother, then grant any reasonable demand and pay him with kindness} (1). Ibn Abbas said: Retaliation existed among the Children of Israel, and blood money did not exist among them. Then Allah the Almighty revealed this verse: {Retaliation is prescribed for you in cases of murder...} until His saying: {But if any forgiveness is made to him by his brother}. Pardon means that blood money is accepted in intentional killing. {Grant any reasonable demand} means the seeker shall pursue it reasonably, and {pay him with kindness} means the sought party shall pay it to him, {this is a concession from your Lord and a mercy}, as opposed to what was prescribed for those before you. This was recorded by al-Bukhari (3). Abu Hurayra also reported that the Messenger of Allah (peace be upon him) stood and said: "Whoever has a relative killed, he is at the best of the two choices: either he receives blood money, or he seeks retaliation." (Agreed upon) (6). Abu Shurayh reported that the Prophet (peace be upon him) said: "Then you, O Khuza'a, have killed this slain person, and I, by Allah, am responsible for his blood money. Whoever has a relative killed after this, his family is between two choices: if they wish, they may kill, and if they wish, they may take blood money." Recorded by Abu Dawud and others (7). Furthermore, because when the guaranteed killing is such that retaliation lapses without a release, property is established, as in the case when some of the heirs pardon. It differs from other destroyed objects because their substitute is required to be of the same nature, whereas here, in cases of error or quasi-intentional killing, it is required from a different category. Thus, if he is satisfied in an intentional case with the substitute of an error-based case, he is entitled to that because he has waived part of his right, and because the killer is able to preserve his own life by offering blood money, so it becomes incumbent upon him. Their argument is refuted by cases where the head of the wounded person is smaller, or the hand of the amputator is deficient, for they have conceded in both those instances.