بَابُ أَهْلِ الرَّدَّةِ وَالسُّعَاةِ بِالْفَسَادِApostates and Those Who Spread Corruption

¹ His statement: “Whoever changes his religion, kill him”: According to us, this Hadith means that if he does not request a delay, he is killed immediately per the apparent narration. If he requests a delay after Islam is offered to him for reflection, he is imprisoned for three days. If he repents, fine; otherwise, he is killed. This is from (Al-Wiqayah) and (Al-Quduri). The obligation of a three-day delay is established by singular reports in such cases. The apparent meaning of (Al-Mabsut) also indicates obligation, stating: If he requests a delay, he is given three days, as it appears he has a doubt, so we must remove it, or he needs time to discern the truth, so a delay is necessary. If he requests it, the Imam must grant it, and the duration for reflection in Sharia is three days, as in the case of choice. Regarding Umar’s Hadith indicating obligation, its interpretation is that he likely requested a delay. Umar’s exoneration also implies obligation. Al-Shafi’i’s correct view is that if he repents immediately, fine; otherwise, he is killed, based on Mu’adh’s Hadith and “Whoever changes his religion, kill him” without specifying a delay, as chosen by Ibn Al-Mundhir. The response to this was mentioned earlier.

² His statement: “If she refuses, call her to repent”: The Imams agreed that a male apostate who does not return to Islam and persists in disbelief is killed. They differed on killing a female apostate. Al-Shafi’i equated her to a male apostate. Abu Hanifah said: A female apostate is not killed, excluded from the general statement of the Prophet (ﷺ): “Whoever changes his religion,” due to the general prohibition against killing women and children, supported by this Hadith. Excerpted from (Al-Mirqat), (Umdat al-Qari), and (Rahmat al-Ummah).

¹ His statement: “And forbade us from mutilation”: In (Al-Durr al-Mukhtar): We are forbidden from treachery, misappropriation, and mutilation after victory over them. Before victory, there is no harm in it. (Chosen) Al-Shami said: Al-Zayla’i said: This is good, and its parallel is burning with fire. In (Fath), its permissibility before victory is qualified if it occurs during combat, like a duel where one strikes, cutting an ear, then strikes, gouging an eye, then strikes, cutting a hand or nose, and so on. So it is in (Badhl al-Majhud). In (Al-Mirqat): Ibn Al-Malik said: The Prophet (ﷺ) did what he did to the Ukl group despite forbidding mutilation, either because they did it to the shepherds or due to the enormity of their crime, apostasy, bloodshed, highway robbery, and theft. The Imam may combine punishments in his policy.

² His statement: “Drink their urine and milk”: Ibn Al-Malik said: This indicates that charity camels’ milk may be used by wayfarers, and treatment with the forbidden is permissible in necessity. Some analogized treatment with wine to this, but most forbade it due to natural inclination toward it, unlike other impurities. This is Abu Yusuf’s view among our Imams. Per Abu Hanifah, it is impure and not permissible for treatment. Per Muhammad and Al-Shafi’i, the urine of edible animals like camels, cows, and sheep is pure. Others answered this Hadith by saying it is abrogated. Excerpted from (Al-Mirqat) and (Umdat al-Ri’ayah). In (Nur al-Anwar): Al-Hakim’s Hadith indicates the abrogation of the Urayniyyin Hadith, as its mutilation ruling is agreed to be abrogated, as it was in early Islam.

³ His statement: “Or it is interpreted that he did to them what they did to the shepherds”: This is not mutilation, as mutilation is initiating it without retribution. So it is in (Umdat al-Ri’ayah).

¹ His statement: “Return her young to her”: The command is recommended, as hunting a bird’s chick is permissible. So it is in (Al-Mirqat).

² His statement: “It is not fitting to punish with fire except the Lord of fire”: In (Al-Hidayah) in the Book of Disliked Acts: It is disliked to place an iron collar on a slave’s neck that restricts head movement, as it is a punishment of Hell’s people, like burning with fire. In (Radd al-Muhtar) under Jihad: Burning and drowning are permissible if the enemy cannot be overcome without great difficulty; otherwise, it is not permissible.

¹ His statement: “Strike his neck”: Al-Nawawi said: This commands fighting those who rebel against the Imam intending to divide the Muslims’ unity or similar. They should first be admonished; if they do not desist, they are fought. If their evil cannot be repelled except by killing, their killing is waived. So it is in (Al-Mirqat).

² His statement: “Because he was eager to kill his companion”: Ibn Al-Malik said: This indicates that intent for a forbidden act is accountable, even if both intended to kill the other, not to defend themselves. If one’s intent was defense and he had no choice but to kill, he is not accountable, as it is legally permitted. So it is in (Al-Mirqat). In (Radd al-Muhtar): The narration “When two Muslims meet with their swords, the killer and the killed are in Hellfire” applies to fighting out of zeal or tribalism, as occurs between people of two villages or neighborhoods, or for worldly gain or power.

¹ His statement: “Cut off their path”: This means blocking passersby and travelers from the road, a form of ellipsis. Some said the road refers to the passersby, applying the place to the state. Others said the preposition means “on,” i.e., cut off on the road, known as grand theft. In (Al-Binayah): Highway robbery has conditions: first, they have strength such that passersby cannot resist; second, it is outside the city, far from it; third, it is in the land of Islam; fourth, the taken amount reaches the minimum threshold; fifth, they are unrelated to the victims’ kin, as no cutting is required if a close relative is among them; sixth, they are caught before repenting. So it is in (Umdat al-Ri’ayah). In (Rahmat al-Ummah): The Imams differed on the punishment for highway robbery. Abu Hanifah, Al-Shafi’i, and Ahmad said it follows the order in the verse. Malik said it is not ordered; the Imam has discretion to kill, crucify, cut hands and feet from opposite sides, exile, or imprison. Those who uphold the order differed on its application. Abu Hanifah said: If they took wealth and killed, the Imam has the choice to cut their hands and feet from opposite sides, kill and crucify, or kill without crucifying. Crucifixion, per his well-known view, is to crucify alive and stab the abdomen with a spear until death, not exceeding three days. If they kill but do not take wealth, the ruler executes them as a prescribed punishment, and the ruler does not consider the forgiveness of the victims’ kin. If they take wealth belonging to a Muslim or a protected non-Muslim, and the amount, when divided among them, equals at least ten dirhams per person, the ruler cuts off their hands and feet from opposite sides. If they are caught before taking wealth or killing, the ruler imprisons them until they repent or die; this is the form of banishment according to him. Malik said: When brigands are caught, the ruler does what he deems appropriate and exercises judgment. Those with influence and strength are executed, while those with only strength are banished. In sum, the ruler may execute, crucify, or amputate them, even if they neither killed nor took wealth, based on what he deems most deterrent, without a specific example. Banishment, per Malik, means expelling them from their town to another and imprisoning them there. Crucifixion follows the same method as Abu Hanifa’s school. The Shafi‘i and Hanbali schools say: If caught before killing or taking wealth, they are banished. They differed on banishment’s nature. The Shafi‘i school holds that banishment means pursuing them if they flee to enforce the punishment if they commit a crime. The Hanbali school has two views: one like this, and another that they are expelled and not allowed to settle in any town. If they take wealth but do not kill, their hands and feet are cut off from opposite sides, then they are released. If they kill and take wealth, they must be executed and crucified. If they kill but do not take wealth, execution is mandatory. Crucifixion, per both, is post-execution. Some Shafi’i scholars say crucifixion is done alive, followed by killing. The duration of crucifixion per Abu Hanifa, Malik, and the Shafi‘i school is three days; the Hanbali school says until the name is no longer associated with them. They differed on considering the minimum value of stolen wealth for brigands’ punishment: Abu Hanifa, the Shafi‘i, and Hanbali schools consider it; Malik does not. If brigands gather, some directly killing or stealing while others assist, do the assistants face the same rulings? Abu Hanifa, Malik, and the Hanbali school say: Assistants face the same penalties in all cases. The Shafi‘i school says: Assistants face only discretionary punishments like imprisonment or banishment, not the prescribed penalties.

² The statement: He ordered half the blood money for them: This involves an error in intent, where someone targets a person thinking they are a combatant but find they are a Muslim. In our view, full blood money is due, as is the opinion of al-Shafi‘i. Al-Khattabi said: The blood money was not completed for them in this hadith after the Prophet (ﷺ) knew of their Islam because they contributed to their own harm by residing among the disbelievers, as if they perished by their own crime and that of another, so their share of the crime reduces the blood money. Gathered from Al-Hidaya, Rahmat al-Umma, and Al-Mirqat.

³ The statement: Their fires should not be visible to one another: It is stated in Al-Alamkiriyya: None of them should be left until they buy a house or residence in a Muslim city. Likewise, none should be left until they reside in a Muslim city, and this is the view taken by al-Hasan ibn Ziyad. According to most books, they are allowed to stay in the land of Islam, except in Arab cities like the Hijaz, where they are not permitted to reside. So it is in Al-Muhit. Shaykh Imam Shams al-A’imma al-Halwani said: This applies if their numbers are few, so their residence does not cause disruption or diminish Muslim communities. If they are numerous, causing disruption or reduction, they are prohibited from residing among people and ordered to live in an area without a Muslim community. This is preserved from Abu Yusuf in Al-Amali. It is stated in Al-Durr al-Mukhtar: Al-Tamartashi clarified in Sharh al-Jami‘ al-Saghir, after quoting al-Shafi‘i, that they are ordered to sell their homes in Muslim cities, leave them, and reside outside, so they do not have a distinct quarter, as per al-Nasafi. The prohibition from cities means they should not have a distinct quarter where they reside with strength like Muslims. Residing among them while subdued is not so. So it is in Fatawa al-Askubi.

¹ The statement: A believer does not assassinate: Meaning one with complete faith, as the Companions, when passing a heedless disbeliever, would alert them, and if they refused Islam after invitation, they would kill them. Thus, it is stated in Al-Hidaya: When Muslims enter enemy territory and besiege a city or fortress, they invite them to Islam. It is stated in Al-Mirqat: If asked: The Messenger of Allah (ﷺ) sent Muhammad ibn Salama al-Khazraji with a group to kill Ka‘b ibn al-Ashraf, Abdullah ibn Atik al-Awsi with a group to kill Rafi‘, and Abdullah ibn Anis al-Juhani to kill Sufyan ibn Khalid, so how to reconcile this hadith with those incidents he ordered? We say: The prohibition on assassination may have come after, which is more likely, as the first was in the third year, the second in the fourth, the third after the Trench in the fifth, and Abu Hurayra’s Islam was in the seventh year at Khaybar. It is possible this was specific to the Prophet (ﷺ) due to his divine protection. It is also possible those incidents were by divine command, as the killed showed treachery against the Prophet (ﷺ), insulted him impermissibly, slandered excessively, and incited against him. Al-Tayyibi said: The judge favored this view and summarized it, saying: Faith prohibits and forbids this, so a believer should not do it. If the target is Muslim, it is clear; if a disbeliever, a warning and call to repentance must precede, as the goal is not killing but perfection and invitation to Islam as possible. This is unless a religious necessity arises, like knowing they persist in disbelief, are eager to kill Muslims, and seize opportunities, where repelling them is only possible this way, and there is no harm in it.

² The statement: If a slave flees to idolatry: Meaning he apostatizes from Islam or joins idol-worshippers. If he flees to idol-worshippers, it is evident he reverts to idolatry, so the penalty applies, which is the permissibility of killing him. If he remains Muslim, it is likely meant as a severe warning. So it is in Bahl al-Majhud.

³ The statement: His blood becomes permissible: Meaning if someone kills him, they are not liable, even if he did not apostatize. So it is in Al-Lam‘at. It is stated in Al-Mirqat: There is no liability on his killer, and if he apostatized, it is even more so. Al-Tayyibi said: Even if he did not apostatize, he did what makes his blood permissible by joining idol-worshippers and abandoning the land of Islam. It was previously stated: Their fires should not be visible to one another.

¹ The statement: The Prophet declared her blood void: Al-Mudhhar said: This indicates that if a protected non-Muslim does not restrain their tongue from Allah, His Messenger, or His religion, they are a combatant whose blood is permissible, breaching the covenant of protection. This is the view of al-Shafi‘i. Our scholars say their covenant is not breached by this. Al-Shafi‘i’s evidence is that if a Muslim insulted the Prophet (ﷺ), their faith is nullified, so a protected non-Muslim’s safety is nullified similarly. We say: Insulting the Prophet (ﷺ) is disbelief, and they remain in disbelief, which does not conflict with the covenant of protection, just as their prior disbelief does not affect it, nor does new disbelief. This is supported by authentic reports that Jews insulted the Prophet (ﷺ) to his face, saying: Death be upon you, meaning death and curse, and he ignored them. Our evidence is the hadith of Dhu al-Khuwaysira. This hadith about the Jewish woman does not prove a breach of the covenant but is understood as a matter of policy. It is stated in Radd al-Muhtar: I saw in Al-Sarim al-Maslul by Ibn Taymiyya that among the Hanafi principles, for crimes without execution, like killing with a heavy object or repeated unnatural intercourse, the ruler may execute the perpetrator if he sees benefit in it. Likewise, he may exceed the prescribed punishment if he sees benefit. They interpret killings by the Prophet (ﷺ) and his Companions in such cases as based on benefit, called killing as policy. In sum, he may punish with execution for major, repeated crimes where execution is prescribed for their type. Thus, most issued rulings for executing protected non-Muslims who repeatedly insulted the Prophet (ﷺ), even if they converted after capture, saying: He is executed as policy. Al-Ayni said: My choice for insulting is execution. Ibn al-Humam followed, as did al-Khayr al-Ramli, ruling it as discretionary punishment, saying: Non-breach does not preclude execution, as breach discussion opposes the school, but execution discussion does not. This is due to the permissibility of discretionary execution, especially if the insult is public or repeated. They explicitly stated the obligation of execution as policy. Abu al-Su‘ud, the mufti of Rum, ruled so, as did most Hanafis for repeated insults, as cited from Al-Sarim al-Maslul. This is the meaning of Ibn al-Humam’s saying: If he publicizes it, he is executed, so his words do not contradict the school. The author of Al-Shifa said: Anyone who insults the Prophet (ﷺ), belittles him, his religion, or traits, likens him to something in a derogatory or disparaging way, attributes to him what is unfit for his status, mocks his words, or belittles his trials or human traits is an insulter, and the ruling is execution without accepting repentance. This is by consensus of scholars and jurists from the Companions to our day. Gathered from Al-Mirqat, Sharh al-Wiqaya, Umdat al-Ri‘aya, Nayl al-Awtar, Al-Durr al-Mukhtar, Radd al-Muhtar, and others.

¹ The statement: The punishment of a sorcerer is a strike with the sword: It is stated in Radd al-Muhtar: In Al-Fath: Sorcery is forbidden without disagreement among scholars, and believing it permissible is disbelief. Our scholars, Malik, and Ahmad say a sorcerer becomes a disbeliever by learning and practicing it, whether they believe it forbidden or not, and is executed. The hadith states: The punishment of a sorcerer is a strike with the sword, meaning execution. Al-Shafi‘i says they are neither executed nor deemed disbelievers unless they believe it permissible. In Al-Khaniyya: If someone uses a charm to separate a man from his wife, they are an apostate and executed if they believe it effective and attribute separation to the charm, as this is disbelief. In Tafsir al-Madarak: Shaykh Abu Mansur al-Maturidi said: Claiming sorcery is always disbelief is wrong; its reality must be examined. If it negates a condition of faith, it is disbelief; otherwise, it is not. Sorcery that is disbelief warrants execution for males, not females. Sorcery that is not disbelief but causes harm to life follows the ruling of highway robbers, applying to both genders. Repentance is accepted if they repent. Those who say it is not accepted err, as the sorcerers of Pharaoh had their repentance accepted.

¹ The statement: Hudud: The hadd is a prescribed punishment for Allah, the Exalted. The difference between punishment and penalty: what causes pain to a person for a crime, if in the Hereafter, is called punishment, and if in this world, is called penalty. The pillar of hadd is its enforcement by the ruler or his deputy. Its condition is that the person it is applied to must be legally accountable and physically sound, so it is not enforced on the insane, intoxicated, sick, or physically weak far from health. Its cause is committing a major sin like adultery, slander, or drinking wine. Its wisdom is deterrence of the one punished. The qualification “prescribed” excludes discretionary punishment, as it is not fixed by Sharia, and its determination is left to the ruler’s judgment. The qualification “for Allah, the Exalted” excludes retribution, as it is legislated to soothe hearts and is a right of people. Prescriptions are of four types: one prevents both increase and decrease, which is hudud; another neither prevents increase nor decrease, as Allah, the Exalted, said: And no soul knows what it will earn tomorrow [Luqman: 34], for it does not know what it will earn today, tomorrow, or beyond; another prevents increase but not decrease, like the option of condition per the Imam; and another prevents decrease but not increase, like the duration of travel. Taken from the commentaries of Al-Kanz.

² The statement: The adulteress and the adulterer, etc.: The punishment for free men and women is of two types: one is a hundred lashes, mentioned in this verse; the second is stoning for the married, mentioned in His saying in Surah Al-Ahzab: If the old man and old woman commit adultery, stone them outright as a deterrent from Allah, and Allah is Mighty, Wise. In a narration, there is an addition: For what they fulfilled of pleasure after outright. This verse is abrogated in recitation, as reported by Abu Ubayd, al-Hakim, and others. Bukhari and Malik in his Muwatta, and through him Muhammad in his Muwatta, reported from Umar ibn al-Khattab that he said in his sermon at the end of his life: Beware lest you perish regarding the verse of stoning, that someone says: We do not find two punishments in Allah’s Book. The Messenger of Allah (ﷺ) stoned, and we stoned. By Him in whose hand is my soul, if not for people saying Umar added to Allah’s Book, I would have written it: The old man and old woman, if they commit adultery, stone them outright. For we have read it. Malik also reported from him: Stoning is in Allah’s Book, a right upon the married man or woman who commits adultery if evidence is established, or there is pregnancy, or confession. The Messenger of Allah (ﷺ) said: The blood of a Muslim is not lawful except for one of three: a man who commits adultery after marriage, so he is stoned; a man who goes out as a rebel against Allah and His Messenger, so he is killed, crucified, or exiled from the land; or a man who kills himself, so he is killed for it. Reported by Abu Dawud, al-Tirmidhi, Ibn Majah, al-Nasa’i, and others through various chains with similar wordings. In sum, stoning for the married is established by the Quran, numerous hadiths, and the practices of the Companions, and consensus has occurred on it. So it is in Umdat al-Ri‘aya.

¹ The statement: They were given their prescribed punishment: Meaning the punishment for slander. Here, it refers to false accusation. It is stated in Rahmat al-Umma: The scholars agree that a free, rational, adult Muslim who falsely accuses a free, rational, chaste Muslim man or woman who has not been punished for adultery, explicitly accusing them of adultery, not in enemy territory, and the accused demands the punishment, is liable to eighty lashes, and no more than eighty. The punishment for a slave for slander is half that of a free person according to all jurists.

² The statement: He committed adultery with a woman, and being unmarried, the Prophet (ﷺ) flogged him a hundred, etc.: The adulterer or adulteress may be married or unmarried. The punishment mentioned in this hadith, flogging, is for the unmarried. In our view, the punishment for the unmarried is only flogging, meaning no combination of flogging and banishment, which is expulsion from the town. Banishment is not part of the prescribed punishment but a policy left to the ruler’s discretion, to apply or not. Al-Shafi‘i said: The complete punishment for the unmarried is banishment, meaning expulsion for a year to a place a travel’s distance away. Banishment is part of the punishment for adultery, completed by both. For us, this hadith and the verse of Surah Al-Nur apply, as the verse explains the punishment, and silence in explanation indicates sufficiency. Allah, the Exalted, stated: Flog them as a sufficient penalty, so the punishment is flogging alone. A year’s banishment is an addition to the Book, which in our view is abrogation, not valid by a single report (Kahbr wahid).

¹ The statement: Take for him a cluster with a hundred twigs and strike him once: It is stated in Al-Durr al-Mukhtar and Radd al-Muhtar: A sick person who commits adultery is stoned and not flogged until he recovers, unless recovery is hopeless, then the punishment is applied by striking lightly as he can bear. In Al-Fath: If the illness is incurable, like tuberculosis, or he is physically weak, in our view and al-Shafi‘i’s, he is struck with a cluster of a hundred twigs at once. All must reach his body, so it is said they must be spread out. The cluster is a bunch of palm twigs.

¹ The statement: The latter: Meaning one delayed from places of good, referring to himself for falling into evil. So it is in Tansiq al-Nizam.

² The statement: He committed adultery, so establish the punishment on him, and the Messenger of Allah turned him away, etc.: Adultery is proven by evidence or confession. Confession is when a rational adult confesses to adultery four times in four sessions of the confessor. Each time he confesses, the judge turns him away. Requiring adulthood and sanity is because the statement of a child or insane person is not valid and does not warrant punishment. Requiring four confessions is our school’s view. Al-Shafi‘i holds one confession suffices, like other rights. He relies on the hadith of al-Asif. We rely on Ma‘iz’s hadith, as he delayed punishment until the confession was completed four times in four sessions. If the confession warranted punishment before four, he would not have delayed it, as its obligation was established. Since testimony requires four witnesses, so does confession, to honor the gravity of adultery and ensure concealment. Gathered from Al-Hidaya and Al-Binaya. It is stated in Tansiq al-Nizam: Many narrations indicate the necessity of four confessions. How can one assume the Messenger of Allah (ﷺ) delayed a necessary punishment, turning him away until four sessions, as in Muslim’s narration? The absence of mention in al-Asif’s hadith, where he did not say: O Anis, if she confesses four times, does not negate its necessity. Al-Tahawi said: It is established that confession for adultery warranting punishment is four times. Whoever confesses so is punished; less than that, he is not. This is the view of Abu Hanifa, Abu Yusuf, and Muhammad. Ali acted on this with Shuraha al-Hamdaniyya, turning her away four times. Al-Tahawi answered al-Asif’s hadith and the Prophet’s (ﷺ) saying to Anis: Go tomorrow to this man’s wife, and if she confesses, stone her, where four times was not mentioned, saying: It is possible Anis knew the confession warranting punishment for adultery from what the Prophet (ﷺ) taught them in Ma‘iz’s case and others, so he addressed him knowing he knew the required confession.

³ The statement: Stone him: Because he was married, and stoning for the married is established by narrations and hadiths with collective meaning, even if their details are single or well-known. This is supported by the reading: The old man and old woman, if they commit adultery, though abrogated in recitation. This collection specifies the generality of Allah’s saying: The adulteress and the adulterer, flog each one of them [Al-Nur: 2] for the married. The unmarried remains as is. This collection is definitively successive, suitable to abrogate it. Umar’s saying in his sermon is reported in the authentic collections: By Allah, if not for people saying Umar added to Allah’s Book, I would have written it. Ma‘iz ibn Malik al-Aslami’s hadith is reported by the six authentic collections, Malik, and others with varied wordings and meanings, long and short, from many Companions like Ubada ibn al-Samit, Ibn Abbas, Abu Hurayra, Abu Sa‘id, Burayda ibn al-Khasib al-Aslami, Jabir ibn Abdullah, and others. It is a well-known hadith, permissible by itself to add to the Book. Its narrations and most authentic chains indicate the requirement of four confessions by the confessor. It is also necessary to ask about the adulteress, a pillar for enforcing the punishment. In Abdullah ibn Burayda’s hadith from his father, he said: We, the Prophet’s Companions, said that if al-Ghamidiyya and Ma‘iz ibn Malik had retracted after their confession, or if they had not returned after confessing, they would not have been sought, and they were stoned at the fourth. Similar narrations are many in the authentic chains. So it is in Tansiq al-Nizam.

⁴ The statement: Why did you not let him go: Thus, it is stated in Al-Hidaya: If the confessor retracts his confession before or during the punishment, his retraction is accepted, and he is released. Al-Shafi‘i and Ibn Abi Layla said: The punishment is enforced, as it was established by his confession, and retraction does not nullify it, like when established by testimony, as in retribution or slander punishment. For us, retraction is a statement subject to truthfulness, like confession, and no one contradicts him in it, so doubt arises in the confession, unlike cases involving human rights like retribution or slander, where someone contradicts. Purely religious rights are different. So it is in Umdat al-Ri‘aya: If the confessor retracts by word or action before or during the punishment, he is released. By word, like saying: I lied in my confession, or I did not confess to adultery. By action, like fleeing during stoning, or retracting his status of being married. So it is in Al-Bahr and Al-Khaniyya, and our evidence is this hadith.

⁵ The statement: He has repented with a repentance, etc.: It is stated in Tansiq al-Nizam: Regarding whether the prescribed punishment is repentance, expiation for sin, or removes accountability in the Hereafter, our school holds that prescribed punishments are deterrents legislated for order in the world, not expiations, as stated in books of principles. Most Hanafi commentators on Al-Hidaya did not address this in the hadith, but Ibn al-Humam did, based on Quranic texts indicating non-expiation, like Allah’s saying: And those are the transgressors, except those who repent [Al-Baqara: 160] for the punished in slander, and That is their disgrace in this world, and for them in the Hereafter is a great punishment, except those who repent [Al-Ma’ida: 33-34] for highway robbers, among other verses. The uncertain must be interpreted to align with the definitive. In Ma‘iz’s hadith, reported by Muslim through Alqama ibn Marthad from Sulayman ibn Burayda from his father: The Messenger of Allah (ﷺ) came, spoke while they were seated, greeted, sat, and said: Seek forgiveness for Ma‘iz ibn Malik. They said: May Allah forgive Ma‘iz ibn Malik. He said: Woe to you, return, seek Allah’s forgiveness, and repent to Him. This shows the punishment is not repentance, and sin and seeking forgiveness remain after. In a clear hadith by Abu Dawud and others, he was brought after cutting, and he said: Seek Allah’s forgiveness and repent to Him. He said: I seek Allah’s forgiveness and repent to Him. He said: O Allah, accept his repentance, three times. In Fatima al-Makhzumiyya’s hadith, the thief, in the two authentic collections and others through Aisha, she repented and repented well. If the punishment was repentance, further repentance would not be needed. Ibn al-Humam said: The hadith must be taken as repentance during the punishment, as it is evident that striking or stoning with repentance occurs due to his act, so it is qualified to reconcile evidence, and the uncertain is qualified against the definitive, not vice versa.

⁶ The statement: Do with it what you do with your dead: Shroud, pray over, and bury him. Thus, it is stated in Al-Hidaya: He is washed, shrouded, and prayed over.

⁷ The statement: He turned him away, then he came: It is stated in Al-Mirqat: He explicitly counted the comings, implying his absence, and we say: If he leaves and returns, it is another session.

⁸ The statement: Did you insert and withdraw? He said: Yes: Thus, it is stated in Al-Hidaya: When his confession is completed four times, he is asked about the adultery: what is it, how, where, and with whom? If he clarifies, the punishment is due.

⁹ The statement: Perhaps you kissed or touched, etc.: It is stated in Al-Hidaya: It is recommended for the ruler to prompt the confessor to retract, saying: Perhaps you touched or kissed.

¹ The statement: Stoned at the prayer ground: Thus, it is stated in Al-Hidaya: He is taken to an open area. In Umdat al-Ri‘aya: The open area is the desert or a wide place. Its basis is Ma‘iz’s stoning at the prayer ground, as reported in the two authentic collections and others, and the prayer ground was then a wide open area. The reason is that a wide place is more suitable for stoning and less likely for stoners to hit each other.

² The statement: When he testified four times: Meaning in four sessions with the condition of his absence each time, as previously established, so the four testimonies are like four witnesses. Abu Hanifa argues from his coming from four sides that four confessions in four sessions are required. So it is in Al-Mirqat.

³ The statement: Are you insane: This indicates that an insane person’s confession is invalid, and prescribed punishments do not apply to him. So it is in Al-Mirqat.

⁴ The statement: Stone him: This indicates that stoning is sufficient without flogging. So it is in Al-Mirqat.

⁵ The statement: He fled: This indicates that the stoned is not bound, tied, or placed in a pit, as if any were so, he could not flee. So it is in Al-Mirqat.

⁶ The statement: We stoned him until he died: Ibn al-Humam said: If he flees during stoning, if he confessed, he is not pursued and is left, but if witnessed against, he is pursued and stoned until he dies, as his fleeing is an apparent retraction, effective in his confession, not in witnesses’ retraction. So it is in Al-Mirqat.

¹ The statement: Seek forgiveness for Ma‘iz ibn Malik, for he has repented with a repentance that, if divided among a community, would suffice them: If asked: What is the benefit of saying: Seek forgiveness for Ma‘iz? The answer: The benefit is in Allah’s saying: When Allah’s victory comes [Al-Nasr: 1] to And I seek His forgiveness [Al-Nasr: 3], and Indeed, We have granted you a clear victory that Allah may forgive you [Al-Fath: 1-2]. The second seeks further forgiveness and advancement in ranks and steadfastness, as in Allah’s saying: Seek forgiveness from your Lord, then repent to Him [Hud: 90]. So it is in Al-Mirqat.

² The statement: He returned, not far: Meaning a return not far, implying an absence not far. So it is in Al-Mirqat.

² The statement: Until you deliver what is in your womb: This indicates that a pregnant woman is not punished until she delivers, to avoid harming the innocent due to the guilty, whether the punishment is for Allah or people. So it is in Al-Mirqat and Al-Hidaya.

³ The statement: Then he came, etc.: If asked: Why did Ma‘iz and al-Ghamidiyya not suffice with repentance, which achieves their goal of removing sin, yet insisted on confession and were stoned? The answer: Purification by punishment is certain, especially in the Prophet’s (ﷺ) presence, while repentance may not be sincere or meet its conditions. So it is in Al-Mirqat. ⁴ The statement: Did he drink wine? A man stood, smelled him, and found no smell of wine: Al-Nawawi said: Malik’s followers and most Hijazis argued that one with the smell of wine is punished, even without evidence of drinking or confession. Al-Shafi‘i, Abu Hanifa, and others say punishment requires evidence of drinking or confession, and this hadith does not support Malik’s followers.

³ The statement: I have weaned him, and he eats food: This indicates that stoning a pregnant woman is delayed until her child is independent, if no one can raise it, to protect the child from loss. Abu Hanifa said in one view, supported by this narration. In another view, a pregnant woman who commits adultery is not punished until she delivers, supported by the first narration. Taken from Al-Mirqat and Al-Hidaya.

⁴ The statement: A pit was dug to her chest: This may have been without his (ﷺ) order. Thus, the author of Al-Hidaya said: Omitting the pit does not harm, as the Prophet (ﷺ) did not order it. It appears it was by his order or approval, so digging is recommended for her. So it is in Al-Mirqat and Al-Durr al-Mukhtar.

¹ The statement: He returned: Meaning he returned after being absent. So it is in Al-Mirqat.

¹ The statement: If you had covered him with your garment, it would have been better for you: Ibn al-Humam said: Bukhari narrated from Abu Hurayra (may Allah be pleased with him), raised to the Prophet (ﷺ): Whoever relieves a Muslim of a worldly distress, Allah will relieve him of a distress on the Day of Resurrection. Whoever conceals a Muslim, Allah will conceal him in this world and the Hereafter. Allah aids the servant as long as the servant aids his brother. Abu Dawud and al-Nasa’i narrated from Uqba ibn Amir (may Allah be pleased with him): Whoever sees a fault and conceals it is like one who revives a buried girl. Since concealment is recommended, testifying to it is less preferable, akin to mild disapproval, as it is recommended to conceal and mildly disapproved to omit. This applies to one who does not habitually commit adultery or flaunt it. If it reaches the point of publicizing or flaunting, or some boast about it, testifying becomes preferable to omitting, as the Lawgiver’s aim is to purify the earth of sins and vices through effective rulings. This is achieved by the sinners’ repentance or deterrence. If adultery or drinking is flaunted without concern, and publicized, purifying the earth requires repentance, which may be unlikely if such behavior persists, so the alternative, prescribed punishments, must be applied. But one who sins once or a few times secretly, fearfully, and regretfully, is where concealment is recommended. The Prophet’s (ﷺ) saying to Hazzal about Ma‘iz: If you had covered him with your garment, applies to such a case. So it is in Al-Mirqat.

² The statement: Then he threw a pebble the size of a chickpea, etc., until: He prayed over her: In Al-Hidaya: The witnesses begin stoning, then the Imam, then the people, as narrated from Ali (may Allah be pleased with him), because a witness may boldly testify but hesitate to act, so starting with them allows for retraction to avert punishment. Al-Shafi‘i said: It’s not required to begin, like flogging. We say: Not everyone is skilled at striking, which may cause fatal harm, which is not warranted, unlike stoning, which is destruction. If witnesses refuse to start, the punishment is dropped, indicating retraction. If they die or are absent, the condition is not met in the apparent view. If by confession, the Imam starts, then the people, as narrated from Ali, and the Prophet (ﷺ) threw a pebble at al-Ghamidiyya, who had confessed. He is washed, shrouded, and prayed over, as the Prophet (ﷺ) said about Ma‘iz: Do with him as you do with your dead, and he prayed over al-Ghamidiyya after stoning.

³ The statement: Then he prayed over her: Scholars differed on praying over the stoned. Malik and Ahmad disliked it for the Imam and virtuous people, but allowed it for others. Abu Hanifa, al-Shafi‘i, and others said: The Imam, virtuous people, and others pray over him. They agreed on praying over sinners, those killed in battle, those punished for prescribed offenses, and illegitimate children. So it is in Al-Mirqat.

⁴ The statement: When evidence is established, or there is pregnancy, or confession: This indicates adultery is proven by evidence or confession. Confession was discussed earlier. Evidence requires four witnesses testifying against a man and woman for adultery. The Imam asks them: What is the adultery? How was it? Where did it occur? When? With whom? If they clarify, saying: We saw him penetrate her like a stick in a kohl container, and the judge verifies their integrity publicly and privately, he rules by their testimony. Pregnancy alone is Umar ibn al-Khattab’s view, requiring punishment if she has no husband or master, followed by Malik and his followers. They said: If she is pregnant without a known husband or master, or coercion, she is punished, unless she is a recent stranger claiming it was from a husband or master. They said: Her claim of coercion is not accepted unless she sought help during coercion before pregnancy appeared. Al-Shafi‘i, Abu Hanifa, and most scholars said: No punishment for pregnancy alone, whether she has a husband or master, stranger or not, or claims coercion or remains silent; punishment requires evidence or confession, as punishments are averted by doubts. In sum: This is Umar’s view, and such a statement does not establish this grave matter leading to loss of life. (Gathered from Al-Hidaya, Muslim’s Sharh by al-Nawawi, and Nayl al-Awtar)

¹ The statement: He was flogged with the prescribed punishment, then informed he was married, so ordered stoned: In Rahmat al-Umma: Is flogging combined with stoning? Abu Hanifa, Malik, and al-Shafi‘i said: No, only stoning is required. Ahmad has two narrations, the more apparent combining them. This hadith does not combine flogging and stoning, as the Prophet (ﷺ) was not informed of his marriage until after flogging. It indicates that if the Imam orders a punishment and it becomes clear another is required, he must apply the legally mandated one. (Gathered from Al-Mirqat)

² The statement: Avert prescribed punishments, etc.: This hadith’s meaning aligns with Abu Hurayra’s hadith about a man and Burayda’s about Ma‘iz, addressing Imams, as seen in the Prophet’s (ﷺ) saying to the man: Are you insane? Then: Are you married? And to Ma‘iz: Is he insane? Then: Did he drink? This indicates the Imam may avert punishments with doubts. The consensus of jurists in major cities that punishments are averted by doubts suffices. Some jurists said this hadith is agreed upon, and the community accepted it. From the Prophet (ﷺ) and Companions’ narrations, the issue is definitive. We know he said to Ma‘iz: Perhaps you kissed? Perhaps you touched? Perhaps you looked? Teaching him to say: Yes, after confessing adultery, with no purpose but to let him go if he said so. He did not say to one confessing a debt: Perhaps it was a deposit you lost. He said to a thief brought to him: Did you steal? I don’t think you did. Similarly to al-Ghamidiyya, and Ali said to Shuraha: Perhaps he coerced you? Perhaps he approached you while asleep? Perhaps your master married you to him, and you conceal it? Such examples from everyone would be lengthy. In sum: Punishments are undoubtedly averted by devising means. These inquiries for averting occurred after establishment, as they followed clear confession and proof. This is derived from these narrations and his saying: Avert punishments with doubts, so this meaning is definitively established by the Law, and doubt in it is disregarded. So it is in Al-Mirqat.

³ The statement: Whoever associates partners with Allah is not married: This explicitly states that Islam is a condition for marriage status, as held by Abu Hanifa and Muhammad. Al-Shafi‘i differs on requiring Islam, as does Abu Yusuf in one narration. They cite the Prophet (ﷺ) stoning two Jews who committed adultery. We say: The stoning of the Jews was early in Islam by Torah’s ruling, so he asked them about adultery’s punishment in the Torah. Marriage status was not a condition in their religion, and he applied the Torah’s ruling before Quranic law was revealed. When Quranic law came, it abrogated that, establishing stoning with marriage status requiring Islam, known from his saying: Whoever associates partners with Allah is not married, and other narrations, supported by Ibrahim al-Nakha‘i. The Hanafis answered al-Shafi‘i’s claim with responses, the best refined by Ibn al-Humam: The hadith of the Prophet (ﷺ) stoning the Jews indicates Islam is not required for marriage status, while the saying: Whoever associates partners with Allah is not married, requires it. If they conflict, precedence is sought, and a saying precedes an action. Requiring Islam is precautionary, desirable in punishments. Clarification: Prioritizing this saying averts punishments, while prioritizing that action requires precaution in applying punishment, and averting is preferred in punishments when conflicting. Gathered from Al-Ta‘liq al-Mumajjad, Al-Hidaya, Al-Mirqat, and Umdat al-Ri‘aya.

¹ The statement: Zakat, prescribed punishments, war spoils, and Friday prayers are for the ruler: Meaning only the Imam implements them. A master cannot enforce a prescribed punishment on his slave without the Imam’s permission, as held by Abu Hanifa, supported by these narrations. Al-Shafi‘i said: A master may enforce the punishment on his slave, citing the Prophet’s (ﷺ) saying: If one of your slave women commits adultery and it is proven, let him enforce the prescribed punishment on her, until the mention of poetry. Our scholars, as in Ghayat al-Bayan and elsewhere, responded that this is understood as the master facilitating the punishment by referring it to the Imam, not directly enforcing it without permission. Al-Ayni said: It is understood as facilitating by referring to the Imam, as the apparent meaning is abandoned by consensus, since it implies obligation, but it is not obligatory for a master to enforce the punishment on his slave by consensus. This is clear in our school, and in al-Shafi‘i’s, as he allows but does not require it. Since the hadith’s apparent meaning is abandoned, we interpret it as stated. Al-Kaki said: The benefit of specifying slaves is to avoid burdening them, preventing masters from refraining from enforcing punishments. Gathered from Umdat al-Qari, Al-Ta‘liq al-Mumajjad, Al-Binaya, and Kanz commentaries.

² The statement: Overlook prescribed punishments among yourselves, etc.: This commands overlooking, addressing non-Imams, including common Muslims and those with rights, who are ordered to conceal absolutely. Thus, Al-Hidaya states: Concealment is recommended. In Majma‘ al-Bihar, under this hadith: You should overlook punishments among yourselves before it reaches me, for what reaches me becomes obligatory for me to enforce. As for Al-Ashbah wa al-Nazair stating that overlooking is invalid in prescribed punishments, unlike retribution, even for slander, it means the punishment is not dropped by overlooking. Though not dropped, if the one overlooking leaves, the Imam cannot enforce it, as enforcement requires a request. If the request is abandoned, the punishment is not enforced unless the claimant returns and demands it, as the overlooking was ineffective, like no claim was made until then. Gathered from Al-Mirqat, Al-Hidaya, Majma‘ al-Bihar, Al-Ashbah wa al-Nazair, and Al-Bahr al-Raiq. In Al-Bada’i‘: There is no dispute that punishments for adultery, drinking, intoxication, and theft do not allow overlooking, settlement, or exemption after proof, as they are purely Allah’s right, with no human right, so none can drop it. For slander, if proven, it is the same in our view; overlooking, exemption, or settlement is invalid. If the slandered overlooks before litigation or settles for money, it is invalid, the settlement payment is returned, and he can demand later. Al-Shafi‘i and one narration from Abu Yusuf hold it valid. Their reasoning: The cause of slander’s punishment is defamation, harming the slandered’s honor, which is his right, like retribution for intentional harm or compensation for unintentional harm, so the penalty is his right, like retribution. We say: All prescribed punishments are purely Allah’s right, established for public welfare to prevent harm and ensure protection. Adultery’s punishment protects lineage, theft and highway robbery protect property and lives, drinking protects lives, property, and lineage by preserving intellect from intoxication. Any offense harming the public, with its penalty benefiting the public, is purely Allah’s right to ensure benefit and prevention, not dropped by a human. This applies to slander, as its punishment benefits the public by protecting honor, making it purely Allah’s right, like other punishments. In Al-Mabsut: If a judge rules for slander’s punishment and the slandered overlooks with or without compensation, the punishment is not dropped in our view. Abu Yusuf and al-Shafi‘i said it is dropped. The principle is that in our view, slander’s punishment is predominantly Allah’s right, with the human’s right secondary. For al-Shafi‘i, the human’s right predominates. Thus, overlooking does not drop it in our view, as one can only drop a purely personal right. Allah’s right cannot be dropped, even if a human has a share, like waiting periods, which are not dropped by a husband, due to Allah’s right. Our view is narrated from Ali. For details, refer to Al-Mabsut.

¹ The statement: Overlook the slips of respectable people, etc.: “Respectability” refers to a person’s moral state and actions. It means those with integrity and piety. The address is to Imams and others with rights, as if fearing changing times and people’s tendency to favor the elite by overlooking or concealing, even neglecting prescribed punishments due to fear or greed. He ordered enforcing punishments on them as on commoners. If overlooking occurs, it should be in non-punishable matters. Gathered from Al-Lam‘at and Al-Mirqat.

¹ The statement: He averted the punishment from her, etc.: In Al-Durr al-Mukhtar and Radd al-Muhtar: No punishment for adultery by coercion, as the Imam later held, though initially saying a man is punished, as coercion requires an erection, indicating consent, unlike a woman, who is not punished by consensus. This is absolute, including non-authoritative coercion, per the preferred view, varying by context and time. ² The statement: It was not mentioned that he assigned her a dowry: In Al-Arf al-Shadhi: Punishment and dowry do not combine.

¹ The statement: Kill the doer and the one done to: Scholars agree sodomy is a major sin. They differed on its punishment. Al-Shafi‘i, in his more prevalent view, Abu Yusuf, and Muhammad said: The doer’s punishment is like adultery’s; if married, he is stoned; if unmarried, flogged a hundred lashes. For the recipient, al-Shafi‘i said this means a hundred lashes and a year’s exile, whether man or woman, married or not, as anal intercourse does not confer marital status. Some, including Malik and Ahmad, said: The sodomite is stoned, married or not. Another view of al-Shafi‘i: Both the doer and recipient are killed, as the hadith’s clear meaning. Some said the method is demolishing a structure on them or throwing them from a height, as with Lot’s people. Abu Yusuf and Muhammad said: It is like adultery, meaning its punishment, so the punished is stoned if married or flogged if not, as it resembles adultery in satisfying desire in a desired, forbidden manner. Abu Hanifa said: He is disciplined, not punished with a prescribed punishment. In Al-Durr: He is disciplined by burning, demolishing a wall, or dropping from a height with stones following. In Al-Hawi for al-Qadusi: Discipline includes flogging, throwing from a high place, or imprisonment in a foul place, but not castration or cutting; flogging is most sound. In Al-Fath: He is disciplined and imprisoned until death or repentance. If he persists in sodomy, the Imam kills him as policy. In Al-Ziyadat: The ruler decides for habitual sodomy, choosing to kill, strike, or imprison. In Al-Ashbah, regarding penetration: No punishment per the Imam unless repeated, then he is killed per the preferred view. Abu Hanifa’s evidence: The Companions differed on sodomy’s ruling. Some said burn with fire, others demolish a wall, others drop from a height with stones. If it equaled adultery, they would not differ, as they would not dispute a textual ruling, so it is disciplined with such measures, and the decision is the Imam’s. It is not like adultery, as it does not waste lineage, confuse ancestry, or corrupt the marital bed, and is rare due to lack of desire on one side, unlike adultery, driven by both. The narrated hadiths apply to policy or those deeming it lawful. (Gathered from Rahmat al-Umma, Al-Mirqat, Fath al-Qadir, Al-Durr al-Mukhtar, Radd al-Muhtar, and Kanz commentaries)

¹ The statement: Whoever approaches an animal, kill him and kill it with him: There is no prescribed punishment for intercourse with an animal, as it does not resemble adultery in being a crime or having mutual desire, since natural disposition recoils from it. It is driven by extreme folly or excessive lust, so there is no obligation to cover an animal’s private parts. However, Abu Hanifa and Malik say he is disciplined, and the animal is slaughtered and burned, with its use, alive or dead, being disliked. A narration from Malik says he is punished with a prescribed punishment. Al-Shafi‘i has three views: first, he faces the prescribed punishment, varying by marital status; second, he is killed, married or not; third, he is disciplined, which is the preferred and fatwa-issued view. Ahmad has two narrations, the one chosen by many of his followers being discipline. They differed on the animal: Malik said it is never slaughtered. Abu Hanifa said: If it belongs to the perpetrator, it is slaughtered; otherwise, not. Al-Shafi‘i’s followers have three views: the soundest is that if its meat is edible, it is slaughtered; otherwise, not. The second: It is always slaughtered. The third: It is never slaughtered. Ahmad said: It is slaughtered, whether it belongs to him or another, edible or not, and the perpetrator owes its value to its owner. Can the perpetrator or others eat it? Abu Hanifa said: He cannot, but others can. Malik said: He and others can. Ahmad said: Neither he nor others can. Al-Shafi‘i’s followers have two views, the sounder being it is edible, as no prohibition applies.

¹ The statement: But whoever repents, etc.: This means no torment in the Hereafter after repentance, but the prescribed punishment is not dropped. In Al-Kashshaf: Repentance does not drop amputation per Abu Hanifa and his companions. Al-Shafi‘i, in one view, says it does. Some said: It is dropped for a belligerent (harbi) who steals if he repents, to encourage Islam, unlike a Muslim, as enforcing it benefits believers. (As mentioned in Al-Tafsir al-Ahmadiyyah)