2. There are various legal, moral and historical aspects of this problem which need explanation, for if these are not clarified in detail, the modern man will find it difficult to understand the divine law concerning it. Accordingly, we shall discuss the various aspects of the problem below.
(1) The common meaning of zina which everyone knows is sexual intercourse between a man and a woman without the legal relationship of husband and wife existing between them. There has been complete unanimity of view among all the social systems from the earliest times to this day that this act is morally wicked, religiously sinful and socially evil and objectionable, and there has been no dissenting voice except from those stray individuals who have subordinated their moral sense to their lust, or who in their misguided notions try to be original and philosophical in their approach. The universal unanimity of view in this respect is due to the fact that man by nature abhors zina. In fact, the future of human race and civilization depends on this that the relationship between the husband and wife should be built upon the basis of an enduring and everlasting bond of fidelity, which should not only be fully recognized in the social life but should also be guaranteed by the existing social structure. Without this the human race cannot survive. This is because the human child requires years of tender care and training for survival and development and a woman alone cannot bear the burden without the cooperation of the man who became the cause of the birth of the child. Similarly human civilization itself is the product of the corporate life of a man and a woman, their setting up a home, bringing up a family, and establishing mutual relationships and inter-connections between families. If men and women were to lose sight of this essential fact, that is, the establishment of a home and raising a family, and were to meet freely just for pleasure and lust, the entire structure of human society would crumble. In fact, the very foundations on which the structure of human civilization and culture has been built will topple down and the whole basis of the concept of a social life will disappear. It is for these reasons that free mixing of men and women, without any recognized and stable bonds of fidelity, is abhorrent to human nature, and it is for this reason that in every age zina has been considered as a moral evil and, in religious terminology, a grave sin. Accordingly, the social systems in every age recognized and adopted the institution of marriage and also adopted preventive measures against adultery or fornication. The forms of the measures adopted in this direction have, however, differed under different social, cultural and religious systems. This difference has been the result of the realization of the disastrous effects of adultery (or fornication) in varying degrees: some societies have considered it to be more heinous than others, and some have conceived it clearly and some others not so clearly and confused it with other problems.
(2) Though adultery (or fornication) has always been accepted as an evil, opinion has differed as to whether it is legally a punishable offense or not, and this is where Islam differs from other religions and systems of law. Social systems which have been akin to human nature have always considered illicit intercourse between man and woman a serious crime and prescribed severe punishments for it. But with the deterioration in moral standards, this morality grew weaker and weaker and the attitude towards this crime became more and more tolerant.
The first common lapse in this connection was caused by the invidious distinction between fornication and adultery. The former as such was taken as an ordinary offense while the latter only was held as a punishable crime.
Zina, as defined under various laws, means a sexual intercourse between a man (whether married or bachelor) and a woman, who is not the wife of anybody. This definition takes into account the position of the woman rather than of the man. If a woman is without a husband, the illicit intercourse with her amounts to fornication irrespective of the fact whether the man is married or not. The ancient laws of Egypt, Babylon, Assyria and India provided very light punishments for it, and the same were adopted by the Greeks and the Romans, which finally influenced the Jewish attitude. According to the Bible, only monetary compensation is payable for such an offense. The commandment on the subject is as follows:
And if a man entice a maid that is not betrothed, and lie with her, he shall surely endow her to be his wife. If her father utterly refuses to give her unto him, he shall pay money according to the dowry of virgins. (Exod. 22: 16,17).
The same commandment is repeated in different words in Deuteronorny, which is as below.
If a man finds a damsel that is a virgin, which is not betrothed, and lay hold on her, and lie with, and they be found. Then the man that lay with her shall give unto the damsel’s father fifty shekels of silver (about fifty-five rupees), and she shall be his wife; because he hath humbled her. (Deut. 22: 28, 29).
Under the Jewish law, if a priest’s daughter acts immorally, she is to be sentenced to burning and the man with whom she was alleged to have acted immorally was to suffer strangulation. (Everyman’s Talmud, pp. 319, 320).
To judge the extent to which this conception resembles that of the Hindus, it will be worthwhile to compare it with the laws of Manu. According to him: Anybody who commits illicit intercourse with an unmarried girl of his own caste with her consent does not deserve any punishment. If the father of the girl is willing, the man should compensate him and marry the girl. But if the girl happens to belong to a higher caste and the man belongs to a lower caste, the girl should be turned out from her parents’ house and the limbs of the man should be cut off. (Adhiai 8. Ashlok 365, 366). This punishment may be changed into burning him alive, if the girl happens to be a Brahman. (Ashlok 377).
Under all these laws, illicit intercourse with a married woman only was the real and major crime. The deciding factor for treating it as a crime was not the illicit relationship between the man and the woman but the likelihood of an awkward situation under which a child might have to be reared up by a man (the real husband of the woman), who was not its father. It was therefore not the act of zina itself but the danger of the mixing up of progenies and the problem of rearing up somebody else’s child at the expense of another and a possibility of its inheriting his property, that was the real basis of treating it as a crime and holding both the man and the woman as criminals. Under the Egyptian law, the man was to receive a severe beating with sticks and the nose of the woman was to be cut off. Similar punishments existed in Babylon, Assyria and Iran. According to the Hindus, the woman was to be thrown to the dogs to be torn apart and the man was to be put on a hot iron bed with fire all around him to burn him alive. At first the Greek and the Roman laws gave a man the right to kill his wife if he found her involved in adultery. He had also the option to demand monetary compensation. In the first century B.C. Augustus Caesar enacted that half the property of the man should be confiscated and he should be exiled. In case of the woman, half her dowry should be written off and one-third of her assets confiscated, and she should also be sent out to a distant part of the country. Constantine changed this law and imposed death penalty both for the man and for the woman. In the times of Leo and Marcian, this punishment was changed to imprisonment for life. Justinian further reduced the punishment and ordered that the woman should be flogged with stripes and sent to a monastery and the husband should be given the right to take her out within two years if he liked, otherwise she was to remain there for ever. Under the Jewish law, the orders for illicit intercourse with a married woman are as under.
And whosoever lieth carnally with a woman, that is a bond maid, betrothed to an husband, and not at all redeemed, nor freedom given her, she shall be scourged; they shall not be put to death, because she was not free. (Leviticus 19: 20).
And the man that committeth adultery with another man’s wife, even he that committeth adultery with his neighbour’s wife, the adulterer and the adulteress shall surely be put to death. (Leviticus 20: 10).
lf a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel. (Deuteronorny 22: 22).
If a damsel that is a virgin be betrothed unto an husband and a man find her in the city, and lie with her; Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city, and the man, because he had humbled his neighbor’s wife: so thou shalt put away evil from among you. But if a man find a betrothed damsel in the Held, and the man force her, and lie with her: then the matt only that lay with her shall die: But unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbor, and slayeth him, even so is this matter. (Deuteronorny 22: 23-26).
However, long before the advent of Christ, the Jewish jurists and scholars, the rich and the poor, had practically ceased to observe these laws. Though it was written in the Old Testament, and it was considered as a divine commandment, nobody was inclined to apply it practically. In the entire Jewish history, there is not a single instance where this commandment was ever enforced. When Jesus (peace be upon him) embarked upon his prophetic mission, and invited the people to the eternal truth, the learned Jews, seeing that there was no way to stop the tide, brought a woman guilty of adultery before him and asked him to decide her case. (John 8: 111). Their object was to create a dilemma for Jesus and to tempt and embarrass him. If he decided in favour of any punishment other than stoning, they would vilify him saying: Here comes a strange Prophet who has changed the divine law for the sake of worldly considerations. And if he were to give the verdict of stoning, this would, on the one hand, bring him in direct clash with the Roman law, and on the other, give them the opportunity to tell the people: Look, what you believe in a Prophet who will expose you to all the severities of the Torah? But Jesus turned the tables on them with one sentence, saying: He that is without sin among you, let him first cast a stone at her. This put the jurists to shame and they departed one by one in humiliation, and the moral degeneration of the learned in law was totally exposed. When the woman was left alone, Jesus admonished her and after her repentance let her go. Jesus did this because he was neither a judge of any court competent to decide the case, nor any evidence had been produced against her, nor was there any government to enforce the divine law.
On the basis of this incident and some miscellaneous sayings of Jesus (peace be upon him) on different occasions, the Christians formed an utterly erroneous conception about the crime of zina. According to them, illicit intercourse between an unmarried man and an unmarried woman is a sin but not a punishable offence. But if either of them (or both) is married, adultery is treated as a crime. It is so not because of the illicit intercourse as such but because of the vow of fidelity taken by each of them before the priest at the altar. Nevertheless, there is no punishment even for this, except that the wife has the right to sue her adulterous husband and claim separation for having violated the vow of fidelity. On the other side, the husband of the adulterous woman can also sue his wife for separation and can also claim compensation from the man who had illicit intercourse with his wife. This is the punishment in the Christian law for adultery. The irony is that even this punishment is a double-edged sword, because a woman, though entitled to separation from her husband by proving his infidelity and getting rid of him cannot remarry under the Christian law. Similarly the husband who sues his wife for infidelity can obtain judicial separation, but cannot remarry. Both the man and the woman who accuse each other of infidelity in a Christian court, will be deprived of the right of remarriage for the rest of their lives.
The Western laws of the modern times, which have also been adopted by the Muslims in various countries, are based on such conceptions. According to them, zina may be an evil, and an immoral and sinful thing, but it is not a crime. It becomes a crime only when illicit intercourse is committed without the consent of the other party. As for adultery by a married man, this only provides a cause for complaint to his wife who may, if she likes, prove it and get a divorce. Similarly in the case of an adulteress, her husband can lodge a complaint against her and also against the man with whom adultery was committed and can sue both of them to claim divorce from the woman and monetary compensation from the man.
(3) The Islamic law, in contrast to all these conceptions, holds zina as a punishable crime and its committal by the married person enhances the guilt all the more. This is not so because of the violation of the oath of fidelity taken by the man or the woman nor because of the encroachment on the conjugal rights of the other, but because the criminal resorted to an unlawful method when there existed a lawful method for satisfying his sex desires. The Islamic law views zina as an act which, if allowed to be indulged in freely, will strike at the very roots of both human race and human civilization. In the interest of the preservation of the human race and the stability of human civilization, it is imperative that relationship between man and woman should be regulated only through lawful and reliable means. And it is not possible to restrain this relationship if opportunities for free mixing of the sexes are allowed to exist, for it cannot be expected from a man or a woman to be prepared to bear the onerous responsibilities of the family life if he or she has the opportunities for the gratification of the sex desires without this. For in that case it will be as meaningless as buying a ticket for a journey when people can travel without a ticket as well. A ticket is essential only when travelling without a ticket is declared to be an offense. If somebody is found traveling without a ticket because he cannot afford to buy it, he is a criminal though in a lesser degree. But if a rich man resorts to this, his guilt becomes all the more serious.
(4) Islam does not rely on punitive law alone for saving humanity from the menace of zina. It employs both reformatory and prohibitory measures on a large scale. It has provided legal punishment only as a last resort. Islam does not want that the people should go on committing this crime and getting flogged with stripes day and night. Its real aim is that the people should not commit this crime at all and there should be no occasion to resort to the extreme punishment. For this purpose Islam first of all purifies man: it imbues him with the fear of All-Powerful and AllKnowing Allah: it inculcates in him the sense of accountability for his actions in the Hereafter from which even death cannot release him. It fills him with obligation of obedience to divine law which is sure to follow true faith. Then, it repeatedly warns him that zina and unchastity are heinous crimes, which Allah will call to account with a severe reckoning. This theme occurs again and again in the Quran. Moreover, Islam provides all possible facilities for a man to marry. If he is not satisfied with one wife, he is allowed to take up to four. If the husband and the wife cannot pull on amicably, there are provisions for separation. In case of a dispute between the two, provision exists for reconciliation through the intervention of the members of the family and failing that through the judicial courts so that they should either reconcile or separate and then remarry wherever they like. All this has been explained in Surahs Al-Baqarah, An-Nisa and At-Talaq. In this Surah too, it is not considered good and right to remain unmarried and a clear commandment has been given that marriages should be arranged between unmarried persons and even slaves (men and women) should not be allowed to remain unmarried. Then Islam puts an end to all those factors which allure a man to zina or provide occasions for it. A year before the punishment for zina was prescribed, women were commanded (in Surah Al-Ahzab) to cover themselves with sheets and lower their head-covers over their faces when going out of their houses. The wives of the Prophet (peace be upon him), who were a model for every Muslim family, were ordered to restrict themselves to their houses with decorum and dignity and not to display their charms and adornments. Moreover, they were required to communicate with men from behind the curtain if there be any need for that. This was a model which was followed by all the believing women who considered the Prophet’s wives and daughters patterns of virtue and not the immodest women of the age of ignorance. Similarly, the free mixing of the men and women was discouraged before it was declared as a criminal offense and women were prohibited from going out openly in make-up.
After adopting such measures zina was declared to be a punishable offense and spreading of indecency in any way was also prohibited. Prostitution was legally banned and severe punishment was prescribed for charging men and women with adultery and propagating it without proof. Men were enjoined to restrain their gaze so that unrestricted feasting of eyes should not lead to lust for beauty and further on to illicit love. At the same time women were also enjoined to differentiate between mahram and non-mahram relatives. This enables one to understand the entire scheme of reform, a constituent part of which is the prescribed punishment for zina. This extreme punishment is for those incorrigible persons who persist in resorting to the illegal course for the gratification of their sex desires in spite of all the treasures adopted to reform the individual and society. They certainly deserve to be flogged. Punishment of a wicked person serves as a, psychological deterrent for those who have similar tendencies.
Mahram relatives are those between whom marriage is not permissible under the Islamic Law, e.g. father and daughter, uncle and niece, nephew and aunt, and so on. Non-mahram are those between whom marriage is permissible e.g. cousins, etc. Punishment is not merely a punishment for the criminal but is a declaration of the policy that the Islamic society has no room for debauchery and people cannot be allowed to live lives of indulgence and pleasures without restraint. If one tries to understand the Islamic scheme of reform from this point bf view, one will realize that not a single part of the law can either be dispensed with or amended. Only a fool who assumes the role of a self-styled reformer, without understanding this divine law, will ever think of changing it, or a mischievous person, who deliberately wants to alter the very object of the social order designed by Allah, will try to tamper with it.
(5) Zina was declared a culpable act in the third year of Hijrah, but, it was not a legal crime at that time; as such the police and the courts were not competent to initiate legal proceedings. It was considered as a social crime against the institution of family. Accordingly the members of the family themselves were competent to punish the accused. The commandment at that time was that if four men should bear witness to having seen a man and a woman committing zina, both the culprits should get a beating and the woman should be imprisoned in the house. But at the same time there was a suggestion that this commandment would apply till further orders and that the real law was yet to follow. (See (Surah An-Nisa, Ayat 15). After about two to three years the present commandment was revealed which canceled the previous commandment and declared zina to be a cognizable offense.
(6) The punishment prescribed in this (verse 2) is for sexual intercourse between unmarried persons; it does not apply to illicit intercourse after marriage, which is a much graver offense under the Islamic law. This thing is implied in (verses 15 and 25 of Surah An-Nisa) that the punishment being prescribed is for the unmarried offenders.
If any of your women are guilty of indecency, call four witnesses from among yourselves to testify this. If they give evidence and prove the guilt, then confine them to their houses until death comes to them, or Allah opens some other way out for them. (Surah An-Nisa, Ayat 15). Whoso cannot afford to marry free Muslim women, he should marry one of the Muslim slave-girls in your possession. Allah has full knowledge of your faith. You all belong to one and the same community. Therefore you may marry them with the permission of their guardians and give them their dowries so that they may live a decent life in wedlock and not in licentiousness nor may have secret illicit relations. Then if they are guilty of indecency, after they have been fortified by wedlock, they shall be given half the punishment prescribed for free women. (Surah An-Nisa, Ayat 25).
(Verse 15) held out a hope that Allah would open some other way out for those adulterous women who were to be imprisoned according to the commandment contained in it. Thus, the commandment in (verse 2 )of this Surah is the same which was promised in (Surah An-Nisa, Ayat 15). Then in (Surah An-Nisa, Ayat 25) the punishment for a married slave-girl guilty of adultery has been prescribed. The word muhsanat has been used twice in the same verse in the same context and one will have to concede that it has been used in the same sense at both the places. Now let us consider the sentence: “Whoso cannot afford to marry free Muslim women (muhsanat)” Obviously a muhsanah cannot mean a married woman; it can only mean an unmarried woman of a free family. Then at the end of the verse it has been enjoined that if a slave woman commits adultery after her marriage, she should be given half the punishment prescribed for a free unmarried woman. The context clearly indicates that in this sentence the word muhsanat has the same meaning as in the first sentence, i.e. an unmarried woman, who enjoys the protection of a free family. Thus it is concluded from these two verses of Surah An-Nisa that the commandment contained in this verse of Surah An-Noor is the same that was promised in (verse 15 of Surah An-Nisa) and it prescribes punishment for sexual intercourse between unmarried persons. Also see (E. N. 46 of Surah An-Nisa).
(7) As regards to the punishment for adultery after marriage, the Quran does not mention it, but it has been prescribed in the traditions. We learn from many authentic traditions that not only did the Prophet (peace be upon him) prescribe the punishment of stoning to death for it verbally but also enforced it practically in several cases. Then after him his successors not only enforced this punishment during their caliphates but also declared repeatedly that this was the legal punishment. The companions and their followers were unanimous on this point and there is not a single saying of anyone to suggest that anybody doubted the authenticity of this law during that period. After them the jurists of all ages and countries have been unanimous that this is the legal punishment prescribed by the Sunnah, for there have been so many strong and continuous proofs of its authenticity that no scholar can refute them. In the entire history of the Muslims, nobody ever denied this except the Kharijites and some Mutazilites and even they did not deny it on the ground that there was some weakness in the proof of its having been enjoined by the Prophet (peace be upon him), but because they considered it to be against the Quran. This was, however, due to their lack of understanding the Quran. They argued that by using the words Az-zani wazzaniyatu in their general sense the Quran has prescribed a punishment of one hundred stripes for this crime. Therefore, according to them, the only punishment for adultery (or fornication) prescribed in the Quran was this, and to prescribe a different punishment for the married persons who committed adultery would be against the divine law. But they forgot that the explanation of the Quranic verses by the Prophet (peace be upon him) carries the same weight and authority in law as the words of the Quran itself, provided that the explanation is proved to be from the Prophet (peace be upon him). The Quran has used As-sariqu was-sariqatu in similar general terms and prescribed the punishment of amputation of hands for the thief, both male and female. Now if this commandment were to be interpreted literally without the limitations authentically emanating from the Prophet (peace be upon him), the generality of the words used would demand that every man or woman, who steals a needle or a plum, should be declared to be a thief and his or her hand cut off from the shoulder. On the other hand, if a thief, who has stolen millions, declares on his arrest that he has reformed himself and has repented of theft, he should be let off in accordance with: But whoso repents after his iniquity and reforms himself, Allah will surely turn towards him with His favour. (Surah An-Nisa, Ayat 39).
Likewise, the Quran forbids marriage only with a foster mother and a foster sister. According to their argument, such a ban should not apply to a foster daughter. The Quran forbids a person to keep two sisters as wives at one and the same time; therefore if a person keeps the aunt (paternal or maternal) and her niece together as wives, he should not be charged with violating the Quranic injunction. Again, the Quran forbids marriage with a stepdaughter only when she has been brought up in the house of her step-father; therefore, according to their way of reasoning, the absolute prohibition of marriage with a stepdaughter should be regarded as against the Quran. Similarly the Quran allows mortgage only when a man is on a journey and nobody is available to prepare the loan documents; therefore if a person is at home and a scribe is also available, mortgage should be regarded as un-Quranic. Then, the Quran enjoins in general terms: You should have witnesses whenever you buy or sell goods. Therefore, according to them, all sales and purchases taking place in the markets without witnesses should be unlawful.
These few instances should suffice to prove the error in the reasoning of those who hold the commandment of stoning to death as against the Quran. Nobody can deny the position and authority of the Prophet (peace be upon him) in the legal system of Islam. It is he alone who can explain the underlying intention of a divine command, its procedures and in what cases it will be applicable and in what there is another injunction. To deny this position and authority of the Prophet (peace be upon him) is not only against the principles of Islam but it also entails innumerable complications in practice.
(8) There is a difference of opinion among the jurists about the legal definition of zina. According to the Hanafis, it means frontal sexual intercourse of a man with a woman who is neither his wife nor his bondwoman, nor is there any valid reason to believe that the sexual act was committed under the misapprehension that the woman was his own wife or his own Bondwoman. According to this definition, sexual act with a woman in the rectum, or sodomy, or sex gratification with animals, does not constitute zina. It is confined only to the frontal sexual intercourse with a woman without any legal right or any doubt thereof. According to the Shafais, zina means insertion of the male sexual organ into the female sexual part, which though forbidden by law may be quite natural. According to the Malikis, zina means the entry of the male sexual organ into the frontal sexual part, or in the rectum of a woman or man, without legal right or any doubt about its being legal. According to these two definitions, sodomy also will be included in zina. The correct position, however, is that these definitions are removed from the common meaning of zina. The Quran always employs words in their ordinary meaning and according to their common usage, unless it uses a certain word as a term. In such a case the Quran itself makes plain the particular sense of the term. In the context in which the word zina occurs, there is no indication that it has been used in any particular sense. Accordingly, the word will have to be taken in the sense in which it is commonly understood. It is, therefore, confined to an illicit intercourse with a woman in the natural way and does not extend to other forms of sexual gratification. Besides, it is well known that there was a difference of opinion about the punishment for sodomy among the companions of the Prophet (peace be upon him). Had sodomy been included in zina according to the Islamic terminology, there would have been no occasion for such a difference of opinion.
(9) Penetration of the glans of the penis is a sufficient legal ground for punishing the act of zina. It is not essential that the penetration should be full or the sexual intercourse should be complete. On the other hand, if there is no penetration of the glans of the penis, mere lying of the couple in the same bed or their caressing each other or their being found naked, is not a sufficient ground for declaring them to be guilty of zina; so much so that the Islamic law does not bother to get the couple medically examined to establish their guilt of illicit sexual intercourse and then to get them punished according to the law. Those who are found in such an indecent condition are offenders and punishable according to the circumstances. The competent authority to determine the nature of the punishment is either a court or the legislature of the Islamic State. If the punishment is to be given in the form of flogging with stripes, it should not exceed ten stripes as specified in a tradition. Except in cases where a specific punishment has been prescribed by Allah, none should be flogged with more than ten stripes for any offense. (Bukhari, Muslim, Abu Daud). However, if a person is not caught red-handed but confesses his guilt himself, he should only be admonished to repent. According to a tradition reported by Abdullah bin Masud, a man came to the Prophet (peace be upon him) and said: I did everything with a woman except the sexual intercourse, outside the city. Now you may give me any punishment you may deem fit. Umar said: When Allah had concealed it, you also should have kept it concealed. The Prophet (peace be upon him), however, remained silent and the man went away. Then the Prophet (peace be upon him) called him back and recited the following verse to him:
Establish salat at the two ends of the day and in early part of the night; indeed virtues remove evils. (Surah Houd, Ayat 114) At this a man asked: Does the commandment apply to him alone? The Holy Prophet replied: No, it is for all. (Muslim, Tirmizi, Abu Daud, Nasai).
Not only this, the Islamic law does not permit that in cases where a man confesses his guilt without specifying his offense, any investigation be made to find out what the actual offense was. A man came to the Prophet (peace be upon him) and said: O Messenger of Allah, I deserve the prescribed punishment, so enforce the punishment on me. The Prophet (peace be upon him) did not ask him what punishment he deserved. After the man had offered his prayers, he again came and said: I am guilty, please punish me. The Prophet (peace be upon him) asked: Have you not offered your prayer with us? When he replied in the affirmative, the Prophet (peace be upon him) said: Well Allah has pardoned your sin. (Bukhari, Muslim, Ahmad).
(10) The mere fact that a person (man or woman) has committed zina, is not enough to declare him guilty of it. For this there are certain conditions which must be satisfied. These conditions are different for fornication and for adultery. In the case of fornication, the offender should be of age and possessing normal common sense. If a child or a lunatic is guilty of it he does not incur the punishment prescribed for zina. In the case of adultery, there are some additional conditions which are as under.
(a) There is unanimity of opinion that the offender must be a free person and not a slave. The Quran itself has indicated that a slave shall not be stoned to death on the charge of zina. As has already been stated, a slave-girl, if found guilty of adultery after marriage, shall get half the punishment prescribed for a free unmarried woman. The jurists agree that the same Quranic law will apply to a slave.
(b) The criminal must be a legally married person. This condition has also the unanimous support of all the jurists. According to this condition, a man who has had sexual intercourse with a stave girl, or whose marriage was performed in an illegal manner, will not be treated as married and shall not be stoned to death but will be flogged with stripes if he commits zina.
(c) Such a person should not only have been legally married but must have had sexual intercourse with his wife after marriage. The mere ceremony of marriage does not entitle a man or a woman to be regarded as a muhsin or a muhsanah and be stoned to death in case of zina. Most of the jurists agree on this condition. However, Imam Abu Hanifah and Imam Muhammad have added a supplementary condition to the effect that a man or a woman will be treated as married only when he or she is a free person and is of age and possesses normal common sense at the time of marriage and sexual intercourse. According to this supplementary condition, if a man is married to a slave girl, or to a minor or mad girl, and even has had sexual intercourse with her, he will not be punishable by stoning to death if found guilty of zina. The same applies to the case of a woman who may have had intercourse with a slave or a mad or immature husband. She will not be stoned to death if found guilty of zina. This is a very reasonable addition by these two far sighted scholars.
(d) The criminal should be a Muslim. But Imam Shafai, Imam Abu Yusuf and Imam Ahmad have disputed this. According to them, even if a non-Muslim married person, who is a protege of the Islamic State, is found guilty of zina, he will be stoned to death. But Imam Abu Hanifah and Imam Malik have concurred that the punishment of stoning to death for adultery after marriage, applies only to the Muslims. The most weighty argument advanced in this connection is that a man, who is to be given the extreme punishment of stoning to death, should be the one who, in spite of enjoying the complete state of ihsan does not refrain from committing adultery. The Arabic word ihsan means moral fortification, which has three essential components. First, the man should be a believer in Allah and in the accountability after death and should owe allegiance to divine law. Second, he should be a free member of society and not a slave of somebody which might hinder him from satisfying his desires in a lawful manner, and his helplessness and indigence should make him commit a sin when there is no family to help him in protecting his morality and honour. Third, he should be married and should have the means of statisfying his sex desires lawfully. Where these three components exist, the moral fortification would be complete and anybody who breaks through these three fortifications for the sake of illicit sex gratification would really deserve the extreme penalty of being stoned to death. But in a case where the very first and foremost component of belief in Allah, in the Hereafter and in divine law, does not exist, the fortification is not complete, and accordingly, the gravity of the guilt is not such as to entail the extreme punishment. This is supported by a tradition related by Ibn Umar and cited by Ishaq bin Rahaviah in his Musnad and Daraqutni in his Sunan: Whoever is guilty of shirk, he is not muhsan (morally fortified). There is, however, a difference of opinion whether Ibn Umar has quoted this as a saying of the Prophet (peace be upon him) or as his own verdict. In spite of this lacuna, the principle is very strong and sound in its theme.
It will not be correct to counteract the above argument by a deduction from the case brought by the Jews to the Prophet (peace be upon him) in which he ordered the stoning of a person guilty of zina. This is because all the authentic reports about the case show that it was not the Islamic law of the land which was applied, but the punishment was awarded on the basis of the Jewish personal law itself. According to a tradition cited by both Bukhari and Muslim, when this case was brought before the Prophet (peace be upon him), he asked: What is the punishment for this offence in your Torah? When it was confirmed that the Torah prescribed stoning, the Prophet (peace be upon him) said: I pass the same judgment as has been prescribed in the Torah. According to another tradition, at the time of the judgment the Prophet (peace be upon him) remarked: O Allah, I am the first man to revive Thy commandment which they (the Jews) had rendered null and void. (Muslim, Abu Daud, Ahmad).
(11) In order to hold a person guilty of zina as punishable, it is necessary to prove that he committed the act of his own free will. If a person is forced to commit the act under compulsion or pressure, he or she is neither an offender nor liable to any punishment. This is not only based on the general principle of the Shariah that a person cannot be held responsible for acts done under compulsion, but this is also in accordance with the Quranic law. In the subsequent verses of this Surah the Quran proclaims pardon for those women who are forced into prostitution. It has also been made clear in the various traditions that in a case of rape only the man was punished and the woman, who had been violated, was let off. According to a tradition cited by Tirmizi and Abu Daud, a woman went out in darkness for prayers when on the way she was overpowered by a man and raped. She raised a hue and cry and the adulterer was caught red-handed and stoned to death by the order of the Prophet (peace be upon him), but the woman was let off. According to a tradition in Bukhari, a man raped a girl during the Caliphate of Umar, who had the man flogged with stripes and let the girl off. It is clear from these instances that there is unanimity of opinion about the law in regard to the case of a woman raped or forced into prostitution. However, there is a difference of opinion in respect of the man who commits the act under compulsion and coercion. Imam Abu Yusuf, Imam Muhammad, Imam Shafai and Imam Hasan bin Salih express the opinion that the man too, who is forced to commit zina under pressure, will be pardoned. Imam Zufar is of the opinion that he will not be let off because the act of zina could not have been performed unless the male organ was fully excited, which means that his own lust and sex desire had urged him to commit the act. Imam Abu Hanifah says that if the act is done under coercion, of the government or any of its officials, the man will not be punished because when the government itself compels a man to commit it, it has no right to punish him. But if somebody else compels him to it, the adulterer will be punished because he could not have committed this without his own desire for it, as sexual lust cannot be aroused by coercion. Of the three opinions, the first one is convincing. This is because even if erection of the male organ is a proof of the sexual urge of the man, it is not necessarily a proof of his willing participation in the act. Suppose, for example, that a tyrant imprisons a simple God-fearing man and puts a beautiful young woman stripped naked in the same cell and does not want to release him until he commits zina and the tyrant brings four witnesses to prove it in the court, it will not be justice to stone them to death or flog them with stripes in utter disregard of the circumstances. This is because there is a probability that circumstances may be created whereby sexual desire may overpower a man even though he may not be a willing partner. Supposing a man were imprisoned and not given anything to drink except wine; then if he drinks it, will he be punished simply because not a single drop of wine could have gone down his throat if he did not intend it, even though he was forced by the circumstances to drink it? For in order to establish a guilt, mere existence of intention is not enough, but it is also necessary to see that the person was in a position to exercise his free will. Therefore, if a person is placed in such circumstances that he is compelled to commit a crime, he will not be a real culprit in some cases, and in some his offence will be very light.
(12) The Islamic law does not confer on anybody the authority except the government to sit in judgment against the man or the woman accused of zina and none except an Islamic court has the authority to punish them. There is a complete consensus of all the jurists that in (verse 2 )the commandment, flog them with stripes, is not addressed to the common people but to the officials and judges of an Islamic government. There is, however, a difference of opinion whether the owner of a slave is competent to punish him or not. According to the Hanafi scholars, he is not, but according to the Shafais he is. The Malikis hold that the owner has no right to cut the hand in case of theft, but in case of zina, calumny and drinking of wine, he can enforce the prescribed punishments.
(13) Under the Islamic law the punishment for zina is a part of the law of the land. Accordingly, it will apply to all people in the Islamic State whether they are Muslims or non-Muslims. Probably none of the jurists except Imam Malik has differed with this opinion. As regards to the opinion of Imam Abu Hanifah that a non-Muslim guilty of zina should not be stoned to death, it is not based on the reason that a non-Muslim is not a complete muhsin, which is one of the conditions of stoning for zina, for this condition is not satisfied unless one is a Muslim. On the other hand, Imam Malik says that a non-Muslim should not be stoned to death because the commandment is a part of the Muslim personal law and the addressees are the Muslims and not the non-Muslims. As for the foreigner who has entered into an Islamic State with due permission and is found guilty of zina, he should also be stoned according to Imam Shafai and Imam Abu Yusuf, but according to Imam Abu Hanifah and Imam Muhammad he cannot be given the prescribed punishment.
(14) The Islamic Law does not make it obligatory that a person must confess his guilt of zina, or those who have knowledge of it must inform the authorities about it. But in case his guilt comes to the notice of the authorities, there is then no room for pardoning the guilt. This is based on a tradition of the Prophet (peace be upon him): If any of you is guilty of any immorality, he should better remain hidden under the curtain of Allah, but if he discloses it to us, we shall certainly enforce the law of Allah on him. According to a tradition of Abu Daud, when Maiz bin Malik Aslami committed the crime of zina, he, on the advice of Hazzal bin Nuaim, went before the Prophet (peace be upon him) and confessed his guilt. The Prophet (peace be upon him) ordered that he should be stoned to death, but at the same time he said to Hazzal: Would that you had kept the matter hidden: this would have been better for you. In another tradition cited in Abu Daud and Nasai, the Prophet (peace be upon him) said: You should yourselves pardon the crimes which merit prescribed punishments because when a crime which calls for such a punishment comes to my notice, it will become obligatory on me to award the punishment.
(15) Under the Islamic Law zina is not a compoundable crime. This is based on a tradition which has been cited in almost all the collection of Hadith. A boy who was working as a laborer in a certain house committed zina with the wife of his employer. The father of the boy gave 100 goats and one slave girl to the man and made a compromise with him. But when the case came before the Prophet (peace be upon him), he said: The goats and the slave girl are yours and they are returned to you. Then he awarded the prescribed punishment to both the guilty ones. This shows that the crime of zina is not compoundable and that under the Islamic law, an outraged chastity cannot be compensated in terms of money. This shameless conception of monetary compensation for outraged modesty is a part of Western laws only.
(16) The Islamic government shall not take action against anybody for zina unless it is fully proved. If the guilt is not proved, the authorities cannot pass orders for punishment even if they have the knowledge of the crime through many other sources. There was a woman in Al-Madinah who openly practised prostitution according to traditions cited in Bukhari and Ibn-Majah, but in spite of this no punishment was given to her as there was no proof of zina against her, so much so that the Prophet (peace be upon him) once uttered the following words about her. lf I were to stone anybody to death without a proof, I would have certainly gotten this woman stoned.
(17) The first possible proof of zina is that proper evidence should be established against the criminal. The important components of the law are.
(a) The Quran explicitly ordains that there should at least be four eyewitnesses to prove the guilt. This has been stated in (Surah An-Nisa, Ayat 15), and in this Surah An-Noor, too, it has been reiterated twice (verses 4, 13). A judge is not authorized to decide the case on the basis of his own knowledge even if he has seen with his own eyes the couple committing the crime.
(b) The witnesses should be reliable according to the Islamic law of evidence, which requires that they should not have been proved to be false witnesses on any previous occasion. They should not be dishonest, they should not be previous convicts, and there should be no proof of their having any personal grudge against the accused, etc. In short, no one can be stoned nor flogged with stripes on the basis of unreliable evidence.
(c) The witnesses should give evidence to the effect that they saw the man and the woman in the actual state of intercourse, i.e. the union was complete such as a piston in a cylinder, and a rope in a well.
(d) The witnesses should be unanimous in regard to the time, the place and the persons committing the crime. Any difference in these basic things will nullify their testimony.
These conditions amply indicate that the Islamic law does not intend to punish people as a matter of course. It inflicts severe punishment only when, in spite of all the measures to reform and eradicate the evil, there still exists a shameless couple in the Islamic society who commits the crime in a way as to be witnessed by as many as four men.
(18) There is a difference of opinion as to whether pregnancy by itself in a free woman, when she has no known husband, or in a slave-girl, when she has no known master, is a sufficient circumstantial evidence for the establishment of the crime of zina. According to Umar; this is sufficient evidence, and the Malikis have adopted it. But the majority of the jurists are of the opinion that mere pregnancy is not a sufficient ground for stoning or flogging anybody with a hundred stripes. It is imperative that such a serious punishment should be based either on the evidence or on the confession of guilt. One of the basic principles of the Islamic law is that the benefit of doubt should go to the accused. This is supported by a tradition of the Prophet (peace be upon him): Avoid punishments wherever you find scope for it. (Ibn Majah). In another tradition, he said: Try to avoid punishing the Muslims wherever possible and if there is a way for an accused to escape punishment, let him off. An error of judgment in letting off an accused is better than in punishing him. (Tirmizi). According to this principle, the existence of pregnancy is not a definite proof of zina, however strong it may be for doubt. For there is a possibility that in one out of a million cases the semen of a man may enter the womb of a woman somehow or other without any sexual intercourse and make her pregnant. Even such a slight possibility of doubt should be enough to spare the accused of the horrible punishment for zina.
(19) There is also a difference of opinion as to whether the witnesses will be punished for falsely accusing a person in case their evidence differs from one another, or if they are not able to prove the guilt. According to a section of the jurists they will be regarded as qazif (one who makes a false accusation as a slanderer), and will be punished with 80 stripes each. Others say that they should not be punished because they came as witnesses and not as plaintiffs, Moreover, if the witnesses are to be punished like this, nobody will come forward as a witness in cases involving zina. This is because in that case no one will volunteer to appear as a witness at the risk of punishment, for nobody can be certain that all the four witnesses will be unanimous in their evidence We consider this second opinion as more rational, for the benefit of doubt should also accrue to the witnesses as it does to the accused. Therefore, if lapse in their testimony cannot result in the extreme punishment to the accused, it should also not result in any punishment to the witnesses branding them as false witnesses, unless of course, their falsehood is clearly proved. In support of the first opinion, two strong arguments are offered.
First, the Quran holds false accusation about zina as a punishable offense. But this argument is incorrect because the Quran makes a distinction between the qazif (the slanderer) and the shahid (one who appears in a court as an eyewitness). An eyewitness cannot be branded as a slanderer merely because the court did not hold his evidence as a sufficient proof of the crime.
The second argument is based on the case of Mughirah bin Shubah, in which Umar punished Abu Bakrah and the other two eyewitnesses on the charge of false accusation. A critical study of the entire case shows that this precedent is not applicable to every case where the crime is not proved by proper evidence.
The facts of the case are that Mughirah bin Shubah, the Governor of Basrah, did not have good relations with Abu Bakrah, whose house was opposite to his house across the same street. One day the windows of the two houses were opened by a strong current of wind. When Abu Bakrah got up to close his window, he saw through the opposite window across the street Mughirah in a state of actual sexual intercourse. He asked three of his friends (Nafi bin Kaladah, and Shibl bin Mabad) who were also sitting with him to stand up and witness what Mughirah was doing. The friends asked him who was the woman. Abu Bakrah said that she was Umm Jamil. The next day a complaint to this effect was sent to Umar, who immediately suspended Mughirah and appointed Abu Musa Ashari as Governor of Basrah. Mughirah along with the witnesses was called to Al-Madinah. When they were asked about the case, Abu Bakrah said that they had seen Mughirah actually committing sexual intercourse with umm Jamil, but Ziad said that the woman was not clearly visible and that he could not say definitely whether it was Umm Jamil or not. During the cross examination, Mughirah proved that they could not have seen the woman distinctly from the place where they were standing. He also proved that there was a close resemblance between his wife and Umm Jamil. Besides this, circumstantial evidence also showed that during the Caliphate of Umar, the governor of a province could not have committed this crime in his official residence, especially when his wife was also living with him. Thus the supposition of Abu Bakrah and his companions that Mughirah was having sexual intercourse with Umm Jamil, instead of his own wife, was nothing but a misplaced suspicion. It was for this reason that Umar not only acquitted the accused but also punished Abu Bakrah, Nafi and Shibl as slanderers. It is obvious that this isolated decision was based on the specific circumstances of the case and not on the principle that the witnesses must be punished when they are not able to prove the charge by their evidence. (For details of this case, see Ahkam al- Quran, Ibn al-Arabi, Vol. II, pp. 88, 89).
(20) Besides the evidence, the other thing by which the offense of zina can be established, is the confession of the accused himself. This confession must be in clear and plain words and the guilty one must confess that he committed zina with a woman who was unlawful for him. He should also admit that the act of zina was complete in every respect. The court must satisfy itself that the guilty person is confessing his guilt voluntarily without any external pressure and that, at the time of confession, he is in his right senses. Some jurists hold that one confession is not enough and that the guilty one must make four separate confessions. This is the view of Imam Abu Hanifah, Imam Ahmad, Ibn Abi Laila, Ishaq bin Rahaviah and Hasan bin Salih. But according to Imam Malik, Imam Shafai, Uthman al-Batti, only one confession is enough. In cases where the conviction is based on the confession of the guilty person himself without the support of any other proof, the infliction of punishment should be suspended if during the course of punishment the guilty one retracts his confession. It does not matter even if it is quite evident that he is retracting his confession in order to escape the torture of punishment. This entire law is based on the precedents which have been cited in the traditions in the various cases of zina.
The most important case is that of Maiz bin Malik Aslami, which has been related by a large number of reporters on the authority of many companions of the Prophet (peace be upon him) and almost all books of traditions contain details with regard to it. Maiz was an orphan boy from the clan of Aslam who had been brought up by Hazzal bin Nuaim. He committed zina with a freed slave-girl. Hazzal said to him: Go to the Prophet (peace be upon him) and inform him of your sin, may be he will pray for your forgiveness. Maiz went before the Prophet (peace be upon him) in the mosque and said: I have committed zina, please purify me. The Prophet (peace be upon him) turned his face away from him and said: Woe be to you, go back and pray to Allah for forgiveness. But the boy again appeared before the Prophet (peace be upon him) and said the same thing and the Prophet (peace be upon him) again turned his face away. The boy then repeated his offense for the third time and the Prophet (peace be upon him) again turned his face away. Abu Bakr warned the boy that if he confessed the crime for the fourth time, the Prophet would get him stoned. But the boy persisted and repeated the same thing again. At this the Prophet turned to him and said: You might have only kissed or embraced or caressed her, or you might have looked at her with lust (and you thought it was an act of zina. The boy said: No. The Prophet asked: Did you lie with her in the same bed? The boy replied in the affirmative. The Prophet again asked: Did you have sexual intercourse with her? The boy again replied in the affirmative. The Prophet then inquired in the most explicit Arabic expression specifically used for this act. Such a naked expression had never before been heard nor was ever heard afterwards from him. Had it not been the question of the life of an individual, the Prophet (peace be upon him) would never have uttered such words. But the boy again replied in the affirmative to this explicit question. The Prophet (peace be upon him) then asked: Did you commit the act in such a manner that your male organ disappeared in her female part? The boy answered: Yes. Again he was asked whether the act was as complete as is a piston in a cylinder and a rope in a well. The boy again answered in the affirmative. Again he was asked whether he really understood what zina meant, and the boy said: Yes, I have committed the same act with her illegitimately which a husband commits legitimately with his wife. The Prophet (peace be upon him) asked: Are you married? He said: Yes. Again the Prophet (peace be upon him) asked whether he had taken any wine. He said: No, and one of the companions smelt his mouth and confirmed that he had not. After this the Prophet (peace be upon him) inquired of his neighbors whether he was suffering from insanity. They replied that he had not exhibited any sign of insanity. Then the Prophet said to Hazzal: Had you kept it secret, it would have been better for you. Then he ordered Maiz to be stoned to death and he was stoned to death outside the city. When they began to throw stones at him, Maiz tried to escape, and said: O people, take me back to the Prophet (peace be upon him). The people of my clan deluded me, assuring that the Prophet would not condemn me to death. But they did not let him escape. Afterwards when this incident was reported to the Prophet, he said: Why didn’t you let him go? Had you brought him to me, he might have repented and Allah might have accepted his repentance.
The second incident is of Ghamidiyyah, who was a woman from the clan of Ghamid, a branch of Juhainah tribe. She also confessed four times that she had committed zina and had become pregnant as a result thereof. At her first confession, the Prophet (peace be upon him) said: Woe be to you, go back and ask forgiveness of Allah and repent. But she said: O Messenger of Allah, do you want to put me off like Maiz? I am pregnant as a result of zina. As there existed pregnancy along with the confession, the Prophet did not cross examine her in detail as he did in the case of Maiz. He said to her, Well, if you do not accept my counsel, go back and come to me after the birth of the child. After delivery had taken place, she came along with the child and said: Please purify me now. The Prophet (peace be upon him) said: Go and suckle your child, and come to me after the suckling is over. She again came after the weaning of the child and brought a piece of bread with her. She fed the child with the piece of bread before the Prophet (peace be upon him) and said: O Messenger of Allah, now the child has been weaned and has started taking bread. At this the Prophet (peace be upon him) entrusted the child to a person to bring it up and ordered the stoning of the woman.
In both these cases, four confessions have clearly been mentioned. According to a tradition, cited by Buraidah in Abu Daud, the companions of the Prophet, in general, held the opinion that if Maiz and Ghamidiyyah had not confessed their guilt four times, they would not have been stoned to death. In the third incident of this nature, the only words used therein, as contained in other traditions, were: Go and inquire from his wife about this. If she confesses her guilt, stone her to death. There is no mention of four confessions here and it is on the basis of this that some jurists have argued that only one confession is enough.
(21) The three cases mentioned above clearly show that a guilty person, who confesses his sin, will not be questioned about the other person with whom he or she committed zina. This is because in that case two persons shall have to be punished instead of one. The Islamic law is not anxious to punish people. But if the guilty person names the other party to the crime, then that party will be interrogated and also punished in case of confession. But if the other party denies it, only the person confessing the guilt will be punished. However, there is a difference of opinion among the jurists as to whether such a person will be punished for zina or for false accusation. According to Imam Malik and Imam Shafai, he will be awarded the prescribed punishment for zina, because he has confessed that crime alone. According to Imam Abu Hanifah and Imam Auzai, he shall be convicted as a false accuser, because the denial of the other party has made his crime of zina doubtful but his guilt of false accusation stands proved anyhow. According to Imam Muhammad and it is supported by a saying of Imam Shafai also, he will be punished for zina as well as for slander. This is because he has confessed the guilt of zina himself and has not been able to prove his accusation against the other party. A similar case was brought before the Prophet (peace be upon him). A tradition to this effect cited in Musnad Ahmad and in Abu Daud by Sahl bin Saad contains these words: A person confessed before the Prophet (peace be upon him) that he had committed zina with such and such a woman. The Prophet (peace be upon him) inquired of the woman but she denied it. Then he gave him the prescribed punishment but forgave the woman. This tradition, however, does not specify the punishment that was awarded. In another tradition cited in Abu Daud and Nasai from Ibn Abbas, it has been stated that on the man’s confession the Prophet (peace be upon him) gave him the prescribed punishment for zina. But when the woman denied it, the man was flogged with stripes for making a false accusation. But this tradition is weak as regards to its links, because one of its reporters, Qasim bin Fayyaz, is not considered as reliable by many scholars of traditions. Moreover, this tradition appears to be opposed to reason because it cannot be expected of the Prophet (peace be upon him) that he would first punish the man for zina and then make an inquiry from the woman. Common sense and justice, which the Prophet (peace be upon him) could not have overlooked, demanded that his case should not have been decided before making an inquiry from the woman. This is supported by a tradition cited by Sahl bin Saad. Therefore, the second tradition cannot be considered as reliable.
(22) There is a difference of opinion among the jurists as to what punishment should be given to the person who has been proved guilty of zina. The various opinions in this regard are as under. Punishment for married persons guilty of zina.
(a) According to Imam Ahmad, Daud Zahiris and Ishaq bin Rahaviah they shall be flogged with 100 stripes and then stoned to death.
(b) All other jurists are unanimous that they shall be stoned to death; stoning to death and flogging will not be combined together.
Punishment for unmarried persons:
(a) According to Imam Ahmad, Imam Shafai, Daud Zahiri, Sufyan Thauri, Ibn Abi Laila and Hasan bin Salih; the punishment is flogging with 100 stripes and exile for one year both for the man and the woman.
(b) According to Imam Malik and Imam Auzai, the man should be flogged with 100 stripes and exiled for one year, while the woman should only be flogged with 100 stripes. (According to these jurists, exile means that the guilty one should be banished from his own habitation and sent to such a distant place where one has to shorten one’s prayer. But according to Zaid bin Ali and Imam Jafar Sadiq, imprisonment also serves the purpose of exile).
(c) Imam Abu Hanifah and his disciples Imam Abu Yusuf, Imam Zufar and Imam Muhammad are of the opinion that the hadd (prescribed punishment) for zina in such cases is only 100 stripes both for the man and for the woman. Any additional punishment, such as exile or imprisonment, is not hadd but tazir (discretionary punishment). If the judge feels that the guilty man is of immoral character, or that the illicit relations of the guilty ones are too intimate, he may exile or imprsion them as the occasion may demand. The difference between hadd and tazir is that hadd is a specific punishment which must be inflicted provided that the guilt has been proved according to the conditions laid down in the Shariah, whereas tazir is a punishment which has not been specified by the Shariah with regard to its nature and gravity, but is determined by the court in accordance with the circumstances of the case.
All the above different opinions have been based on various traditions of the Prophet (peace be upon him), which are given below.
According to a tradition related by Ubadah bin Samit and cited by Muslim, Abu Daud, Ibn Majah, Tirmizi and Imam Ahmad, the Prophet (peace be upon him) said: Take it from me. Take it from me. Allah has prescribed the method for dealing with women guilty of zina. An unmarried man committing zina with an unmarried woman should get 100 stripes and one year’s exile. The married man committing zina with a married woman should get 100 stripes and stoning to death. Though this tradition is technically correct according to its authentic links, we learn from a large number of correct Traditions that it was neither acted upon during the time of the Prophet nor during the rightlyguided Caliphate nor any jurist ever gave any verdict strictly in accordance with it. According to a tradition from Abu Hurairah and Zaid bin Khalid Juhani, which has been cited by Bukhari, Muslim, Abu Daud, Tirmizi Nasai, Ibn Majah and Ahmad, a case was brought by two beduins before the Prophet (peace be upon him). One of them said: My son, who worked as a laborer in the house of this man, got involved with his wife. I compromised with him by giving him 100 goats and one slave girl, but I have been told by the scholars that this is against the Book of Allah. Please decide the case between us according to the Book of Allah. The second man also said the same thing and asked for the decision according to the divine Book. The Prophet (peace be upon him) said: I will decide according to the divine Book. You should take back your goats and the slave girl. Your son shall get 100 stripes and a year’s exile. Then the Prophet (peace be upon him) said to a man from the clan of Aslam: O Unais, go to this man’s wife and inquire from her about this. If she confesses her guilt, stone her to death. The woman confessed the guilt and was stoned to death. It should be noted that in this tradition there is no mention of flogging the married woman before stoning her to death, whereas the unmarried man, guilty of zina with a married woman, was punished with flogging and exile. Besides this, the accounts of the cases of Maiz and Ghamidiyyah, which have been cited in the various books of traditions, do not mention anywhere that the Prophet (peace be upon him) ordered flogging of the guilty person before stoning him or her to death. There is no tradition in any book of traditions to the effect that the Prophet (peace be upon him), in any case, combined flogging with stoning to death. In all the cases of zina by married persons, he awarded the punishment of stoning to death only. In his well-known address, cited by Bukhari, Muslim, Tirmizi, and Nasai on the authority of various reporters, Umar declared most emphatically that the punishment for zina after marriage is stoning to death. Imam Ahmad also has cited various traditions regarding this but in none of these there is any mention of flogging before stoning to death. From among the rightly guided Caliphs Ali alone combined flogging with stoning to death in one case. Imam Ahmad and Bukhari have cited this case on the authority of Amir Shabi that a woman named Shuaha confessed being pregnant as a result of illicit intercourse. Ali got her flogged on Thursday and stoned to death on Friday, saying: We flogged her according to the Book of Allah and stoned her to death in accordance with the Sunnah of the Prophet (peace be upon him). There is no other case than this in which both the punishments were combined during the rightly-guided Caliphate.
According to a tradition cited in Abu Daud and Nasai on the authority of Jabir bin Abdullah, a man committed zina and the Prophet (peace be upon him) awarded him the punishment of flogging. Afterwards when it came to be known that he was a married man, he ordered that he should be stoned to death. Besides this, we have already cited several other traditions showing that the Prophet (peace be upon him) awarded the punishment of flogging only to the unmarried persons guilty of zina. For instance, the man who raped a woman while she was going out for prayers, and the man who confessed his crime of zina but the woman did not, were given the punishment of flogging.
As regards to exile, the authority may use its own discretion. Umar exiled Rabiah bin Umayyah bin Khalf on a charge of drinking and he fled and joined the Romans. At this Umar said that in future he would not exile a man and a woman guilty of zina, because he feared that there was a risk of mischief in it. (Ahkam al-Quran, AI-Jassas, Vol. III, p. 315).
In the light of these traditions and cases as a whole, it becomes quite clear that the view of Imam Abu Hanifah and his disciples is correct. The punishment for a married man or woman for zina is stoning to death alone while the punishment for unmarried persons is 100 stripes only. Flogging and stoning to death were never combined from the time of the Prophet (peace be upon him) up to the Caliphate of Uthman. As for combining flogging and exile, it was practiced on some occasions while on others it was not. This clearly establishes the correctness of the way of Imam Abu Hanifah.
(23) The first reference to the nature of flogging with stripes is implied in the word fajlidu of the Quran itself. The word jald is derived from jild, which means skin. Accordingly all lexicographers and commentators have taken it to mean that flogging should be carried out in such a way that its effect should be confined to the skin only and should not reach the flesh under it. The flogging that causes deep wounds into the flesh or tears it up into pieces is against the Quran.
The whip or the cane used for the purpose of flogging should be medium in all respects: it should neither be thick and hard nor thin and soft. According to a Ttradition cited by Imam Malik in Muatta, the Prophet (peace be upon him) asked for a whip for flogging but as it had worn out owing to long use, he said: Bring a harder one. Then a new whip was brought which was very hard because of lack of use. The Prophet (peace be upon him) said: Get me one between these two. Accordingly, a whip was brought which had been used in riding and with it he gave the flogging. A similar tradition has also been cited by Abu Uthman an- Nahdi about Umar that he always used a medium whip. (Ahkam al-Quran, AI-Jassas,Vol. III, p. 322). A whip with knots or one having two or three prongs is also prohibited.
Flogging should also be of average intensity. Umar used to instruct the flogger, Strike in such a way that your armpit should not become visible during flogging, i.e. do not stretch your arm fully to strike with full force. (Ahkam alQuran, Ibn al-Arabi, Vol. II, p. 84, and Ahkam al-Quran, AIJassas, Vol. III, p. 322). All the jurists agree that.
(a) The stripe should not be such as may cause a wound.
(b) The flogging should not be confined to one and the same place but should be spread over the whole body.
(c) The face and the private parts, and, according to the Hanafis, the head also should be spared but all other parts should get some flogging. Ali once said to the flogger: Let every part of the body get its due share except the face and the private parts. According to another tradition, he said: Save the head and the private parts only. (Ahkam al- Quran, Al Jassas Vol. III, p. 321). The Prophet (peace be upon him) has said: When anyone of you is flogging, he should not strike on the face. (Abu Daud).
While flogging, a man should be made to stand and a woman to sit. In the time of Imam Abu Hanifah, Qazi Ibn Abi Laila of Kufah got a woman flogged while she was standing. The Imam took a strong objection to it and openly declared it to be a wrong thing. Incidentally, this also throws light on Imam Abu Hanifah’s stand with regard to the law of the contempt of court. At the time of flogging, the woman should be in her full dress: her clothes should rather be tied down on her so that no part of her body might be exposed; her thick clothes only will be taken off. But in regard to a man, there is some difference of opinion. According to some jurists, he will be allowed to remain in his pajamas only, and according to some others, the shirt will not be taken off. Abu Ubaidah bin al-Jarrah sentenced a person guilty of zina to be flogged. The man said: This sinful body should get a severe flogging. Then he started taking off his shirt, but Abu Ubaidah said: Do not let him take off his shirt. (Ahkam al-Quran, Al-Jassas, Vol. III, p. 322). During the time of Ali, a man was flogged while he was wrapped in a sheet of cloth.
Flogging is prohibited in severe cold and in severe heat. In winter it should be done when it is hot and in summer when it is cool.
It is also not permissible to tie down a person at the time of flogging unless he tries to run away. According to Abdullah bin Masud, it is not permissible in the Islamic community to flog anybody after stripping him naked or after tying him on a tripod.
Jurists have permitted that at least twenty stripes may be given daily but it is better to inflict full punishment at one and the same time.
Flogging should not be entrusted to uncouth, uncultured executioners, but it should be done by men of deep insight who understand how the flogging should be carried out in order to meet the requirements of the Shariah. Ibn Qayyim has cited in zad al-Maad that the Prophet (peace be upon him) employed the services of such pious and respectable people as Ali, Zubair, Miqdad bin Amr, Muhammad bin Maslamah, Asim bin Thabit and Dahak bin Sufyan for this purpose. (Vol. I, pp. 44, 45).
If the guilty person is suffering from some disease and there is no hope of his recovery or is too old, it is enough to strike him once with a branch of 100 twigs, or with a broom of 100 twigs in order to meet the requirements of the law. During the time of the Prophet (peace be upon him), an old man, who was suffering from some disease, was found guilty of zina and the Prophet (peace be upon him) awarded him the same kind of punishment. (Ahmad, Abu Daud, Nasai Ibn Majah). In the case of a pregnant woman, the flogging will be postponed till the delivery and the complete discharge of blood after childbirth. But if she is to be stoned to death, the punishment will not be given till the child has been weaned.
If zina is proved by evidence, the flogging will be initiated by the witnesses themselves. If the punishment is based on confession, the judge himself will initiate the punishment. This is to make the witnesses and the judge realize the seriousness of the matter. In the case of Shuraha, when Ali decided to stone her to death, he said: Had there been any witness to this crime, he should have initiated the stoning, but as she is being punished on the basis of confession, I will initiate it myself. According to the Hanafis, this procedure is essential but according to the Shafais, it is not essential. It is, however, preferable according to all jurists.
After examining the above details of the law of flogging, just consider the audacity of those who hold this punishment as barbarous. This accusation becomes all the more ridiculous when the same people allow a harsher punishment in their jails. According to the existing law, not only the court but an ordinary superintendent of the jail also is authorized to award a punishment of 30 stripes to a prisoner for disobedience or insolence, and this flogging is carried out by a specialist who keeps himself ready and fit by regular practice and the canes are wetted beforehand so that they may cut through the body like a knife. The convict is stripped off his clothes and nothing but a thin cloth wetted with tincture of iodine is left to cover his private parts. Then he is tied down to a tripod to prevent him from making any movement at the flogging and the flogger comes running from a distance and strikes him with full force. Every time the same part (buttocks) is struck so hard that the flesh flies out like minced meat and often the bones become bare. Often it so happens that even the strongest man does not stand 30 canes and becomes unconscious and it takes a long time before his wounds are healed. It is an irony that those people, who are themselves enforcing this civilized punishment in jails today, have the cheek to call the punishment enjoined by Islam as barbarous. Then the horrible tortures which are inflicted by their police not only on proved criminals but on suspects, especially those suspected of criminal crimes, are well known to every one.
(24) After a convict has been stoned to death, he (or she) will be treated like any other Muslim. His (or her) body will be washed and shrouded: funeral prayer will be said in the Islamic way, and he (or she) will be buried with due respect in a Muslim graveyard. Prayers for his (or her) forgiveness will be offered and it will be improper for anyone to talk ill of him (or her). According to Jabir bin Abdullah Ansari, as cited in Bukhari, when Maiz bin Malik was stoned to death, the Prophet (peace be upon him) said good words about him and himself led his funeral prayer. A tradition from Buraidah, as cited in Muslim, states that the Prophet (peace be upon him) said: Pray for the forgiveness of Maiz bin Malik: he has offered such a repentance that if it were to be distributed over a whole community, it would suffice for the forgiveness of all its people. In the same tradition it has been mentioned that when Ghaimidiyyah died due to stoning, her funeral prayer was led by the Prophet (peace be upon him). When Khaid bin Walid talked ill of her, the Prophet (peace be upon him) said: Khalid, hold your tongue! I swear by Him Who controls my life that her repentance was such that even if a cruel tax-collector had offered such a repentance, he would have been forgiven. According to Abu Hurairah, as cited in Abu Daud, after the stoning of Maiz one day when the Prophet (peace be upon him) was walking along, he heard two men talking ill of Maiz. When he had gone a few paces further, he saw the dead body of a donkey. He stopped there and asked the two men: Come on and eat something out of it. They said: O Prophet of Allah, who can eat a dead donkey? The Prophet (peace be upon him) replied: Talking ill of your own brother was much worse than eating a dead donkey.
According to a tradition from Imran bin Hunain cited in Muslim, when the funeral prayer of Ghamidiyyah was about to be offered, Umar said to the Prophet (peace be upon him): Are we going to offer funeral prayer for this adulteress? The Prophet (peace be upon him) said: She has offered such a repentance that if it were to be distributed over the entire population of Al-Madinah, it would suffice for their forgiveness. According to another tradition from Abu Hurairah, cited in Bukhari; when a man was being punished for drinking, somebody said: May God defame him! The Prophet (peace be upon him) said: Do not utter such words and thus help Satan against him. In Abu Daud there is an addition to this, according to which the Prophet (peace be upon him) said: Pray like this, O Allah, pardon him and show mercy to him. This is the true spirit of punishment in Islam. Islam does not punish even the biggest criminal with vindictiveness but with the intention to reform him. That is why after the punishment, mercy and compassion are shown towards him. In contrast to this, the modern civilization adopts a very mean attitude towards those who are killed by the state military or police and whose death is upheld by a judicial inquiry. It is not tolerated that even somebody may carry his dead body to the graveyard or utter a good word about him. In the face of this behavior, they have the moral courage (a euphemism for impudence) to preach tolerance to the world.
(25) As regards to the law of punishment concerning zina with prohibited relations, see (E.N. 33 of Surah An-Nisa), and for the punishment of sodomy see (E.Ns 64-68 of Surah Al-Aaraf). As regards to the committal of this heinous act with animals, some jurists treat it as zina and hold that the guilty person deserves the prescribed punishment of this crime. But Imam Abu Hanifah, Imam Yusuf, Imam Muhammad, Imam Zufar, Imam Malik and Imam Shafai hold that it is not zina, and therefore, the offender should he given the discretionary punishment and not the prescribed punishment. We have already stated that the discretionary punishment has been left to the judge, or if necessary the state legislature can devise some appropriate form of punishment for it.
3. The first thing that deserves attention in this verse is that the criminal law is being termed as the Way of Allah. This shows that the Way of Allah does not merely consist in Salat, Fasting, Hajj and payment of Zakat dues, but the law of the land is also a part of the Way of Allah. The establishment of the Way does not mean the establishment of Salat alone but it also includes the establishment of the divine law and the system of law based on it. If these things are not established, the mere establishment of the system of Salat will be regarded as partial implementation of the Way. But when instead of this an un-Islamic system of law is adopted, it amounts to the total rejection of the divine way itself.
The second thing which deserves attention is the warning from Allah that no feeling of compassion or pity should restrain you from inflicting the prescribed punishment on the guilty person. The same thing has been further elaborated by the Prophet (peace be upon him) in the following Tradition.
On the Day of Judgment, a judge who had reduced the punishment by one stripe in a certain case, will be called to account. He will be asked: Why did you do so? He will say, It was out of pity for your people. Allah will say: Well, it means you were more compassionate towards those people than Myself. Then it will be ordered: Take him to Hell. Another judge, who had enhanced the punishment by one stripe will be brought forth. He will be asked: Why did you do so? He will say: It was done to serve as a deterrent for others. Allah will say: Well, it means you were wiser than I with regard to them. It will be ordered: Take him to Hell. (Tafsir Kabir, Vol. Vl, p. 225).
The above applies to the case when reduction or enhancement in the punishment was the result of compassion or some other factor. But if the quantum of punishments were to be changed according to the status of the culprit, it would constitute the worst type of crime. According to a tradition related by Aishah, the Prophet (peace be upon him) said in an address: The communities before you perished because whenever anyone from among their aristocrats committed a theft, he was forgiven but whenever an ordinary man committed the same offense, he was awarded the prescribed punishment. According to another tradition, the Prophet (peace be upon him) said: The enforcement of one prescribed punishment is more beneficial to the people than 40 days of rainfall. (Nasai, Ibn Majah).
Some commentators have interpreted this verse to mean that the culprit should neither be forgiven after his guilt has been proved nor his punishment reduced. He must be flogged with 100 stripes. Some others have taken it to mean that the flogging should not be so light that the culprit may not feel its effect at all. The verse covers both the above interpretations and, in fact, both are plausible. It also means that the one guilty of fornication should get the same punishment which has been prescribed by Allah and no other type of punishment. It is a sin to inflict any other type of punishment instead of flogging even for the sake of compassion or pity. But if any other type of punishment is inflicted on the ground that flogging with stripes is a barbarous type of punishment, it amounts to kufr; which should never be tolerated even for a moment by a true believer. To believe in the divinity of Allah and then to call Him a barbarian, suits only those who are the meanest of hypocrites.
4. The punishment should be awarded publicly so that, on the one hand, the guilty one may feel disgraced and, on the other, it may serve as a deterrent for the other people. This throws light on the concept of punishment in Islam. In( verse 38 of Surah Al-Maidah), in connection with the punishment of theft, it was said.
It is the recompense for what they have earned, and an exemplary punishment from Allah.
And now here it is being enjoined that the adulterer should be given the punishment publicly. This shows that in Islamic law punishment is awarded to meet three purposes.
(a) To inflict pain on the criminal for the excesses he committed against the other person or society,
(b) To stop him from repeating the crime,
(c) To serve as a deterrent for others, so that the people having evil inclinations in society may be deterred and dare not commit such crimes again.
Another advantage of awarding the punishment publicly is that the officials concerned should not be able to reduce or enhance the punishment at will while executing it.
5. That is, only an adulterous woman is a fit match for an adulterous man who has not repented or an idolatrous woman. No believing, virtuous woman can be a match for him. It is forbidden for the believers that they should give their daughters in marriage to such wicked people knowing them to be so. Similarly the fit match for adulterous women (who have not repented) can only be adulterous or idolatrous men; they are not fit for any righteous believer. It is forbidden for the believers that they should marry women who are known to possess immoral character. This thing applies to those men and women who persist in their evil ways, and not to those who repent and reform themselves, for after repentance and reformation they will no longer be regarded as adulterous.
According to Imam Ahmad bin Hanbal, the prohibition of marriage with an adulterous man implies that such a marriage, if contracted, will have no legal effect. But this view is not correct. Prohibition does not have any legal implications. It cannot mean that if a person violates this prohibition, the marriage will be void, and the parties concerned will be involved in zina in spite of marriage. For the Prophet (peace be upon him) has stated: The unlawful does not make the lawful unlawful. (Tabarani, Daraqutni). In other words, an illegal act does not make a legal act also illegal. Therefore, if a person commits zina and then marries, his conjugal relations with his spouse cannot be considered as zina, because in that case the other party of the marriage contract who is not immoral, will also have to be considered as involved in zina. As a rule, no illegal act except open rebellion can cause the one guilty of it to be declared an outlaw, so that no act of his can be regarded legal after that. If the verse is considered in this light the plain meaning would be this: It is a sin to select such persons for marriage as are known to be immoral. The believers should shun them, otherwise they will feel encouraged, whereas the Shariah intends to segregate them as the undesirable and contemptible element of society.
Similarly this verse does not validate the marriage of an adulterous Muslim with an idolatrous woman and of an adulterous Muslim woman with an idolatrous man. The verse simply means to emphasize the act of zina, and declares that the person who commits it being a Muslim, makes himself unfit for contracting a marriage in the pure and pious Muslim society. Even if the accuser is an eyewitness of an immoral act, he should keep the secret and let the filth remain where it is instead of causing it to spread. However, if he has witnesses, he should abstain from publicizing the matter in society but should bring the case to the notice of the authorities and get the criminals duly punished by the court of law.
5a Below, we give the details of the law in serial order.
(1) The context in which the words walla-zina yarmun-almuhsanat (those who accuse chaste women) occur clearly shows that it does not imply any common sort of accusation but specifically the accusation of zina against the chastity of pure women. Then the demand from the accusers to produce four witnesses in support of their accusation also shows that it relates to zina. For in the entire Islamic law producing four witnesses is the legal requirement only in a case of zina and in no other matter. The scholars, therefore, agree that this verse describes the law relating to the accusation of zina, which has been termed qazf for convenience so that this law is not extended to cover cases of other accusations like that of theft, drinking, taking of interest, etc. Apart from qazf, the question of determining punishments for other allegations can be left to the discretion of the judge, or to the consultative council of the Islamic state, who can make general laws to cover cases of contempt and defamation as and when required.
(2) Though the verse only mentions al-muhsanat (pure and chaste women), the jurists agree that the law is not confined to the accusation in respect of women, but it extends to the accusation in respect of chaste men also. Likewise, though the masculine gender has been used for the accusers, the law is not confined to male accusers only but extends to female accusers as well. For as regards to the gravity and wickedness of the crime, it does not make any difference whether the accuser or the accused is a man or a woman. Therefore in either case, the man or accuser or the woman accusing a virtuous and chaste man or woman of zina, will be dealt with under this law.
(3) This law can be applied only in a case where the accuser has accused a muhsan or muhsanah, i.e. a morally fortified man or woman. In case the accused is not morally fortified, the law cannot be applied. if a person who is not morally fortified is known for his immorality, there will be no question of the accusation, but if he is not, the judge can use his discretion to award a punishment to the accuser, or the consultative council can make necessary laws to deal with such cases.
(4) For an act of qazf to be considered as punishable, it is not enough that somebody has accused somebody else of immorality without a proof, but there are certain conditions which have to be fulfilled in respect of the qazif (accuser), maqzuf (the accused) and the act of qazf itself. As for the qazif, he should satisfy the following conditions:
(a) He should be an adult: if a minor commits the crime of qazf, he can be given a discretionary punishment but not the prescribed punishment.
(b) He should possess normal common sense: an insane and mentally abnormal person cannot be given the prescribed punishment. Similarly, a person under the influence of an intoxicant, other than a forbidden intoxicant, e.g. chloroform, cannot be considered as guilty of qazi.
(c) He should have committed qazf out of his own free will or choice, and not under duress.
(d) He should not be the father or grandfather of maqzuf (the accused), for they cannot be given the prescribed punishment.
According to the Hanafis, the fifth condition is that the accuser should not be drunk, because the person who only gesticulates cannot be held guilty of qazi. But Imam Shafai disputes this. He says that if the gesticulation of the drunk person is clear and unambiguous by which everybody can understand what he wants to say, he will be considered as a qazif, because his gesticulation is no less harmful to defame a person than the word of mouth. On the contrary, the Hanafis do not hold mere gesticulation as a strong enough ground for awarding the prescribed punishment of 80 stripes; they, therefore, recommend a discretionary punishment for it.
The conditions to be satisfied by maqzuf (the accused) are as follows:
(a) He should be possessing normal common sense, i.e. he should be accused of having committed zina while in the normal state of mind; the accuser of an insane person (who might or might not have become sane later) cannot be held guilty of qazf, for the insane person cannot possibly safeguard his chastity fully; and even if the evidence of zina is established against him, he will neither become deserving of the prescribed punishment nor incur personal defamation. Therefore, the one accusing him also should not be held as deserving of the prescribed punishment of qazf. However, Imam Malik and Imam Laith bin Saad hold that the qazif of an insane person deserves to be awarded the prescribed punishment of qazf, because he is accusing another person of zina without a proof thereof.
(b) He should be an adult, i.e. he should be accused of having committed zina while being of full age legally. Accusing a minor, or a grown up person that has committed zina when a minor, does not deserve the prescribed punishment, for, like an insane person, a child also cannot fully safeguard his honor and chastity. However, according to Imam Malik, if a boy approaching the age of maturity is accused of zina, the accuser will not deserve the prescribed punishment, but if a girl of that age is accused of having submitted herself for zina, when sexual intercourse with her is possible, her qazif will deserve the prescribed punishment, for the accusation defames not only the girl’s family but ruins the girl’s future as well.
(c) He should be a Muslim, i.e. he should be accused of having committed zina while in Islam. Accusing a non- Muslim, or a Muslim that has committed zina when a non- Muslim, does not entail the prescribed punishment.
(d) He should be free; accusing a slave or a slave-girl, or a free person that has committed zina when a slave, does not call for the prescribed punishment, for the helplessness and weakness of the slave can hinder him from safeguarding his honor and chastity. The Quran itself has considered the state of slavery as excluded from the state of ihsan (moral fortification). (Surah An-Nisa, Ayat 25). But Daud Dhahiri does not concede this argument; he holds that the qazif of the slave or slave-girl also deserves the prescribed punishment of qazf.
(e) He should possess a pure and blameless character, i.e. he himself should be free from zina proper and everything resembling therewith, This means that he should neither have been held guilty of zina in the past, nor should have had sexual intercourse in an illegal marriage, nor with a slave girl who was not clearly in his possession legally, nor with a woman whom he mistook for his wife. His day to day life should be such that nobody could accuse him of immorality, nor he should have been held guilty of lesser crimes than zina before. In all such cases the moral purity of the person falls into disrepute, and the accuser of such a person cannot deserve the prescribed punishment of 80 stripes. So much so that if the guilt of zina against an accused person is proven on the basis of evidence just before the enforcement of the prescribed punishment on an accuser, the latter will be forgiven; because the former is no longer chaste and morally pure.
Though the prescribed punishment cannot be enforced in any of these five cases. It does not, however, mean that a person who accuses an insane person or a minor or a non- Muslim, or a slave, or an unchaste person of zina without proof, does not even deserve a discretionary punishment.
Now let us consider the conditions which must be found in the act of qazf itself An accusation will be considered as qazf, if either an accuser accuses a person of such a sexual act which, if proved to be correct by necessary evidence, would make the accused liable to the prescribed punishment, or the accuser holds the accused as of illegitimate birth. But in either case the accusation must be unambiguous and in clear terms. Vague references in which the accusation of zina or illegitimacy depends upon the accuser’s intention, are not reliable. For instance, using words like adulterer, sinner, wicked, immoral, etc. for a man, and prostitute, harlot, whore, etc. for a woman is only a reference and not qazf. Similarly, words which are used as an abuse like bastard, etc. cannot be regarded as qazf. There is, however, a difference of opinion among the jurists whether an allusion is also gazf or not. According to Imam Malik, if the allusion is clear and is meant to charge the addressee of zina or hold him as of illegitimate birth, it will be qazf, and the qazif will be liable to the prescribed punishment. But Imam Abu Hanifah and his companions and Imam Shafai, Sufyan Thauri, Ibn Shubrumah, and Hasan bin Saleh hold the view that an allusion is in any way ambiguous and doubtful, and wherever there is doubt, prescribed punishment cannot be awarded. Imam Ahmad and Ishaq bin Rahaviyah maintain that if an allusion is made in the heat of a quarrel or fight, it is qazf, but if in sport and fun, it is not. Umar and Ali, from among the Caliphs, awarded the prescribed punishment in cases of allusion. In the time of Umar, one of the two men, who were involved in a brawl, said to the other: Neither was my father an adulterer nor was my mother an adulteress. The case was brought before Umar. He asked those present there what they understood by the remark. Some said that the man had only praised his parents and had not imputed anything to the other man’s parents. Others objected to the use of the words and said that by these he had clearly alluded that the other man’s parents were adulterous. Umar concurred with the latter and awarded the prescribed punishment. (Al-Jassas, vol. III, p. 330). There is also a difference of opinion as to whether accusing somebody of sodomy is qazf or not. lmam Abu Hanifah does not regard it qazf but Imam Abu Yusuf, Imam Muhammad; Imam Malik and Imam Shafai hold it as qazf and recommend the prescribed punishment for it.
(5) There is a difference of opinion among the jurists as to whether qazf is a cognizable offence or not. Ibn Abi Laila says that this is the right of Allah; therefore, the qazif will be awarded the prescribed punishment whether maqzuf (the accused) demands it or not. Imam Abu Hanifah and his companions hold that it is certainly a right of Allah in so far as the enforcement of the prescribed punishment on the establishment of the offence is concerned, but in so far as the trial of the accuser under the law is concerned, it depends on the demand of the accused, and in this respect it is the right of man. The same is the opinion of Imam Shafai, and Imam Auzai. According to Imam Malik, if the offense of gazf is committed in the presence of the ruler, it is a cognizable offense, otherwise legal action against the accuser will depend on the demand of the accused.
(6) Qazf is not a compoundable offense. If the accused does not bring the case to the court, it will be a different thing; but when the case is brought to the court, the accuser will be pressed to prove his accusation, and if he fails to prove it, he will be awarded the prescribed punishment. The court then cannot pardon him nor the accused himself, nor the matter can be settled by making monetary compensation, nor the accuser can escape punishment by offering repentance or apology. The Prophet (peace be upon him) has instructed: Forgive among yourselves offenses that deserve the prescribed punishment, but when a case is brought before me, the punishment will become obligatory.
(7) According to the Hanafis, the demand for the prescribed punishment of qazf call either be made by the accused, or, if the accused is not there, by the one whose lineage suffers the stigma, e.g., the father, mother, children, and the children’s children. But according to Imam Malik and Imam Shafai, this right is inherited. If the accused dies, each one of his legal heirs can make the demand for the prescribed punishment. It is, however, strange that Imam Shafai excludes the husband and the wife from this right on the ground that their marriage bond breaks with death, and the accusation against one spouse does not affect the lineage of the other. The fact is that both these arguments are weak. When it is conceded that the right to demand the prescribed punishment for qazf is inheritable, it will be against the Quran to exclude the husband and the wife from the exercise of this right on the ground that their marriage bond breaks with death, because the Quran itself has declared each of them as an heir on the death of the other. As for the argument that the accusation against one does not affect the lineage of the other, it may be correct in the case of the husband but it is absolutely wrong in the case of the wife; the man whose wife is accused of zina has the lineage of his children automatically rendered doubtful. Moreover, it is not correct to think that the punishment for qazf has been prescribed only to protect the lineage of the people; honour along with lineage is equally important. Thus, it is no less damaging for a gentleman or a lady that his wife or her husband is accused of zina. Therefore, if the right to demand the prescribed punishment for qazf be inheritable there is no reason why the husband and the wife should be debarred from exercising that right.
(8) After it has been established that a person has committed qazf, the only thing that can save him from the prescribed punishment is that he should produce four witnesses who should give evidence in the court that they have seen the accused committing zina practically with such and such a man or woman. According to the Hanafis, all the four witnesses should appear at one and the same time in the court and they should give evidence all together. For if they appear one after the other, each one of them will become a qazf, and will need four witnesses to support him. But this is a weak argument. The correct position is the one adopted by Imam Shafai and Uthman al-Bani, that it is immaterial whether the witnesses appear all together or come one after the other; it is rather better that as in other cases the witnesses should come one after the other and give evidence. The Hanafis hold that it is not necessary that the witnesses should be righteous; even if the qazif produces four immoral persons as witnesses, he will escape the prescribed punishment of qazf, and the accused also the prescribed punishment of zina, because the witnesses are not righteous. However, if the qazif produces witnesses who are unbelieving, or blind, or slave, or those already convicted of qazf, he will not escape the punishment. Imam Shafai holds that if the qzif produces witnesses who are immoral, he and his witnesses all will become liable to the prescribed punishment, and the same is the opinion of Imam Malik. But the view of the Hanafis in this matter appears to be nearer the truth. According to them, if the witnesses are righteous, the qazif will be acquitted of the charge of qazf, and the crime of zina will become established against the accused. But if the witnesses are not righteous, the qazif’s crime of qazf, the maqzuf’s crime of zina and the evidence of the witnesses will all stand doubtful, and none will be held liable to punishment on account of the element of doubt.
(9) The Quran has given three commandments in respect of the person who fails to produce proper evidence which can cause his acquittal of the crime of qazf.
(a) He should be awarded 80 stripes.
(b) His evidence should not be accepted in future.
(c) He himself is a transgressor.
After this the Quran says: Except those who repent of it and mend their ways; Allah is Forgiving and Merciful.
The question arises: To which of these three commands is the forgiveness due to repentance and reformation as mentioned in the verse related? The jurists agree that it is not related to the first command. That is, repentance will not render the punishment null and void, and the criminal will be given flogging in any case. The jurists also agree that the forgiveness is related to the third command, which means that after repentance and reformation the criminal will no longer be a sinner and Allah will forgive him. Here the difference of opinion is only in this matter whether the criminal becomes a sinner due to the crime of qazf itself, or after his conviction by the court. Imam Shafai and Laith bin Saad hold that he becomes a sinner due to the crime of qazf itself, and therefore, they reject his evidence thenceforth. On the contrary, lmam Abu Hanifah, his companions and lmam Malik maintain that he becomes a sinner after the enforcement of the sentence; therefore, till the enforcement of the sentence his evidence will be acceptable. But the truth is that in the sight of Allah the criminal becomes a sinner as a result of the crime of qazf itself, but for the people his being a sinner depends on his conviction by the court and the enforcement of the punishment on him. Now as far as the second command, viz. “The evidence of qazif should not be accepted in future, is concerned, there has been a great difference of opinion among the jurists as to whether the sentence “except those who repent” is related to this or not. One group says that this sentence is related only to the last command. That is, a person who repents and mends his ways will no longer be a sinner in the sight of Allah and the common Muslims, but the first two commands will remain effective, i.e. the sentence will be enforced on him and his evidence will never be accepted in future. To this group belong eminent jurists like Qazi Shuraih, Said bin Musayyab, Said bin Jubair, Hasan Basri, Ibrahim Nakhai Ibn Sirin, Makhul, Abdur Rahman bin Zaid, Abu Hanifah, Abu Yusuf, Zufar, Muhammad, Sufyan Thauri, and Hasan bin Saleh. The other group says that the clause “except those who repent” is not related to the first command but is related to the other two. That is, after repentance, not only will the evidence of the offender who has been punished for qazf be acceptable, but he will also not be regarded as a sinner. This group comprises jurists of the status of Ata, Taus, Mujahid, Shabi, Qasim bin Muhammad, Salim, Zuhri, Ikrimah, Umar bin Abdul Aziz, Ibn Abi Nujaih, Sideman bin Yasar, Masruq, Zahhak, Malik bin Anas, Uthman al- Batti, Laith bin Saad, Shafai, Ahmad bin Hanbal and Ibn Jarir Tabari. Among other arguments, these scholars cite the verdict of Umar which he gave in the case of Mughirah bin Shubah. For, according to some traditions, after enforcing the punishment, Umar said to Abu Bakrah and his two companions: If you repent (or confess your lie), I shall accept your evidence in future, otherwise not. His companions confessed but not Abu Bakrah. On the face of it, it appears to be a strong argument. But from the details given above of Mughirah bin Shubah's case, it would become obvious that it is not correct to cite this precedent in support of this view. For in that case, there was complete unanimity as far as the act (of sexual intercourse) was concerned and Mughirah bin Shubah himself did not deny it. The point of dispute was the identity of the woman. Mughirah said that she was his own wife, whom the accusers had mistaken for Umm Jamil. Then it had also been established that the wife of Mughirah and Umm Jamil resembled with each other to a degree that from the distance and in the kind of light that they were seen, the former could be mistaken for the latter. But the circumstantial evidence was wholly in favour of Mughirah bin Shubah, and a witness of the case also had admitted that the woman was not clearly visible. That is why Umar decided the case in favour of Mughirah bin Shubah, and after punishing Abu Bakrah, said the words as mentioned in the above-quoted traditions. This clearly shows that the real intention of Umar was to impress on the accusers that they should confess that they had given way to undue suspicion and that they should repent of accusing people on the basis of such suspicions in future, otherwise their evidence would never be accepted. From this it cannot be concluded that in the eyes of Umar the evidence of a person whose falsehood had been established, could become acceptable just after he had repented. The truth is that in this matter the view of the former group is stronger. None except Allah can know whether a person has repented sincerely or not. If a person repents before us, we may not consider him as a transgressor afterwards, but once his falsehood has been established, we cannot afford to trust him in future simply because he has uttered repentance. Moreover, the words in the text themselves indicate that “except those who repent” is related only to “they themselves are transgressors”. The reason is that the first two things, in the sentence “flog them with eighty stripes, and never accept their evidence afterwards” have been given in the imperative form, while the third thing “they themselves are transgressors” is a predicate. Then the clause “except those who repent” just after the predicate itself indicates that the exception relates to the predicate and not to the two imperative sentences. Nevertheless, if it is conceded that the exception is not confined to the last sentence, one does not understand why it should be made to apply to “never accept their evidence” only and not extended to “flog them with eighty stripes” also.
(10) A question may be asked: Why should not the exception in “except those who repent” be made applicable to the first command also? Qazf after all is a sort of defamation. Why should not a person who confesses his guilt, apologizes and repents, be let off, when Allah Himself says: “except those who repent and trend their ways; Allah is Forgiving and Merciful.” It will be strange that Allah forgives while the people do not forgive. The answer is that the act of taubah (repentance) is not merely uttering the word taubah with the tongue; it rather implies having a feeling of regrets, a resolve to reform and an inclination to do right; and this can only be known to Allah whether a person has repented sincerely or not. That is why on repentance worldly punishments are not forgiven but only punishments of the Hereafter; and that is why, Allah does not say that if the offenders repent, then they be forgiven, but says: “For those who repent, Allah is Forgiving and Merciful.” If the worldly punishments are also excused on repentance, there will be no offender who will not offer repentance in order to escape his sentence.
(11) Another side of the question is that if a person cannot produce witnesses in support of his accusation, it may not necessarily mean that he is a liar. Is it not possible that he be true in his accusation, yet he may fail to produce evidence? Then, how is it that he should be condemned as a sinner on account of his failure to produce witnesses not only by the people but also by Allah? The answer is that even if a person is an eye-witness to the immorality committed by another person, he will be considered as a sinner for publicizing the act and accusing the offender without necessary evidence. The divine law does not want that if a person gets polluted in filth in a private place, the other person should start spreading the filth in the whole society. If he has any knowledge of the presence of the filth, there are two ways open for him: either he should let it remain where it is, or he should produce a proof of its existence, so that the officials of the Islamic State should cleanse it. There is no third way for him. If he publicizes it, he will be committing the crime of spreading the filth everywhere; and if he brings the matter to the notice of the officials without satisfactory evidence, they will not be able to deal with it effectively. The result will be that the failure of the case will become a means of spreading the filth and encouraging the wicked element of society. Therefore, the one who commits qazf without necessary proof and evidence will in any case be a sinner even if he be true in his accusation.
(12) The Hanafi jurists hold that the qazif should be given a lighter punishment than the one who is convicted of zina. That is, he should be given eighty stripes but flogging should be less intense, the reason being that his being a liar is not certain in the offense for which he is being punished.
(13) Majority of the jurists including the Hanafis are of the view that only one punishment will be enforced on the qazif no matter how often he repeats the accusation before or during the enforcement of the punishment. If after the punishment the qazif goes on repeating the same accusation, the punishment which he has already been awarded, will suffice. However, if after the enforcement of the prescribed punishment, he brings another charge of zina against the accused, he will be tried again for the new charge of qazf. Abu Bakrah after getting the punishment in the case against Mughirah bin Shubah, went on repeating openly that he bore witness that Mughirah had committed zina. Umar wanted to try him again, but as he was repeating the same accusation, Ali expressed the opinion that he could not be tried again and Umar conceded it. After this the jurists became almost unanimous that a qazif who has received the prescribed punishment for a crime, cannot be tried again unless he commits a fresh crime of qazf.
(14) There is a difference among the jurists with regard to qazf against a group. According to the Hanafis, if a person accuses a number of persons in one word or in more words separately, he will be awarded only one prescribed punishment unless, of course, lie commits a fresh crime of qazf after the enforcement of the first punishment. The words of the verse “Those who accuse chaste woman” indicate that the accuser of one person or more persons deserves only one punishment. Moreover, there can be no zina for which at least two persons cannot be accused, but in spite of that the law-giver has prescribed only one punishment and not two, one for accusing the woman and the other for accusing the man. Contrary to this, Imam Shafai holds that the person who accuses a group of persons, whether in one word or in more words separately, will be awarded as many punishments as the number of the persons accused, one for each. The same is the opinion of Uthman al-Batti. However, the ruling of Ibn Abi Laila, to which Shabi and Auzai also subscribe, is that the one who accuses a group of persons of zina in one word, deserves one punishment, and the one who accuses them separately in separate words, deserves separate punishments, one for each.