Islamic Fiqh > Penalties (hudud) > Fornication: proof, conditions and punishment > The proof of fornication
Contents
Updated on 27 September 2026 at 3:52 AM
Proof of zina (fornication) before the judge comes by two channels: testimony and confession. The sheets on this page deal with testimony from end to end: the number of witnesses, their conditions, the explicit description required of them, the unity of their session, the fate of incomplete testimony, the retraction of witnesses and of the confession, the husband's testimony against his wife, and the recommended prompting of the confessor to withdraw.
Every ruling is reported as the source attributes it, school by school and scholar by scholar, with the Quranic references, the cited hadiths (whose grade is flagged by the source) and the books mentioned at the end of each point.
The scholars agreed: if four free and upright men testify to zina, describing it and saying they saw the man's member enter the woman's like a kohl stick into its jar and a rope into a well, the punishment is established against the accused. The sheet cites as proof: "Those of your women who commit indecency, take the testimony of four witnesses from among you against them" (surah an-Nisa 15) and "Those who accuse chaste women and then do not bring four witnesses, flog them with eighty stripes" (surah an-Nur 4).
Abu Hurayra reported that Sa'd ibn 'Ubada said to the Messenger of Allah: "Do you see that if I find a man with my wife, should I leave him until I bring four witnesses?" The Messenger of Allah replied: yes.
reported by Muslim (10008)
Allah loves that His servants be covered, and requiring four witnesses realizes this covering: four people catching such an act is extremely rare. A great number of scholars transmitted consensus on this rule. Imam al-Shafi'i said: I know of no disagreement among people that no punishment is established in zina with less than four witnesses. Imam Ibn al-Mundhir said: they agreed that testimony in zina is four and less is not accepted. Imam Ibn 'Abd al-Barr said: the scholars agreed that proof in zina is four male upright witnesses testifying to the explicit, not the allusive, by seeing and direct observation. Imam Ibn Hazm said: the obligation to accept four witnesses in zina rests on the text of the Quran, without disagreement.
Imam Ibn al-'Arabi explained: Allah required the highest testimony against the gravest disobedience because of the weight of the right at stake; requiring four witnesses is a rule established in the Torah, the Gospel and the Quran, as the hadith of the Jewish couple brought to the Prophet shows: he asked for the two most learned Jews, who declared that they found in the Torah that if four witnesses see the member like a staff in a kohl jar, the culprits are stoned, and he then brought four witnesses and ordered stoning.
Qadi 'Iyad said: no disagreement among the scholars that less than four witnesses is not accepted in zina. The vizier Ibn Hubayrah said: they agreed that the proof by which zina is established is the testimony of four upright men describing the reality of the act. Imam an-Nawawi said: they agreed that the proof is four male upright witnesses when they testify to the act itself, and less than four is not accepted. Imam Ibn Qudamah said: the Muslims agreed that less than four witnesses is not accepted in zina, and Allah stated this rule in the text.
The jurists set cumulative conditions for the four witnesses. The first: that they be Muslims. The scholars agreed: the testimony of the people of the covenant (dhimmis) is not accepted, whether against a Muslim or a dhimmi, since uprightness is not realized in them and neither their transmissions nor their religious reports are accepted. Imam Ibn Qudamah said: they agreed that they must be Muslims and upright, outwardly and inwardly, whether the accused is a Muslim or a dhimmi.
The second: uprightness ('adala). It is required in every testimony; Ibn Qudamah said there is no known disagreement, since uprightness is a condition of other testimonies, all the more here with the extra precaution: the testimony of the open sinner (fasiq) and of the man of unknown status, whose uprightness is not known, is not accepted, for he may be a sinner.
Imam Ibn Rushd said: the Muslims agreed to require uprightness for accepting testimony, by "from those you approve as witnesses" (surah al-Baqara 282) and "take two upright witnesses from among you" (surah at-Talaq 2). The scholars differed over its definition. The majority said: it is a quality added to Islam, namely keeping the obligations and recommended acts of the Law and avoiding the forbidden and disliked acts. Abu Hanifah said: for uprightness it suffices that Islam be apparent and that no flaw be known of the witness. The cause of the disagreement is hesitation over the meaning of the term opposed to iniquity: all agree that the testimony of the open sinner is refused, by "if a sinner brings you a report, verify it" (surah al-Hujurat 6).
All also know that the sinner's repentance makes his testimony acceptable, except the one whose iniquity comes from the false accusation of zina (qadhf): Abu Hanifah said his testimony is never accepted even after repentance, while the majority accept it. The disagreement comes from the verse "never accept their testimony; they are the sinners, except those who repent afterwards" (surah an-Nur 4 and 5): does the exception refer to the nearest mentioned, or to the whole except what consensus restricts, namely that repentance does not remove the punishment due to him.
The jurists of the four schools agreed: masculinity is required in the witnesses of zina; the testimony of women is not valid, nor their testimony joined to that of men. The sheet cites the report from az-Zuhri: the Sunna was transmitted from the Messenger of Allah and the two caliphs after him, may Allah be pleased with them, that the testimony of women is not accepted in the punishments and retribution. The reason: the punishments and retribution rest on averting by doubts, and the testimony of women always carries a doubt, since they are created inclined to forgetfulness, distraction and deficiency of reason and religion; Allah alludes to this in "if one of them errs, the other reminds her" (surah al-Baqara 282), and the Messenger of Allah described women as deficient in reason and religion. What is averted by doubts is not established by a proof carrying a doubt.
Imam Ibn 'Abd al-Barr said: the testimony of women in this is permitted by no one. Imam al-Mawardi said: they agreed that women's testimony in the punishments is not accepted, except what is reported from 'Ata and Hammad ibn Abi Sulayman who accepted it like that over property; and this view is false, by the verse "take two upright witnesses from among you" (surah at-Talaq 2) and because Allah's punishments are averted by doubts, so testimony here is even more demanding than in what is not averted by doubts. Imam al-Qurtubi transmitted from al-Mahdawi: women's testimony in the punishments is not permitted by the generality of jurists, nor in marriage and divorce by most scholars: this is the madhhab of Malik, al-Shafi'i and others. Imam Ibn Qudamah said: they must all be men; women's testimony is not accepted here in any case and no disagreement is known, except what is reported from 'Ata and Hammad: three men and two women would suffice; this is an aberrant view given no weight, since the word "four" denotes the number of males, and the case of four witnesses including women is settled by the text: even five would not suffice. The testimony of women carries a doubt, since straying is near them, and the punishments are averted by doubts.
The jurists of the four schools (Hanafis, Malikis, Shafi'is and Hanbalis) stated that the witnesses must describe the act: they must have seen the man's member enter the woman's vagina until the glans disappears. The sheet cites the hadith of Ma'iz al-Aslami, who confessed four times before the Prophet and was then asked: did you penetrate her, until your member disappeared in her as a kohl stick disappears in its jar and a rope in a well? He affirmed it, declared he knew what zina was, asked for purification and was stoned (a hadith the sheet grades weak, reported by Abu Dawud (4428) and Ibn Hibban in his Sahih (4399)). The point of this proof: the Prophet required the reality of the act to be spelled out, and likewise for testimony, since what is reported may not carry the punishment; the judge must therefore require a description of the reality of the act.
Imam Ibn Hazm said: no two people of the community differ that the testimony required of them is to declare having seen his member in hers, entering and leaving; consensus stands that apart from this testimony there is no testimony of zina and the accuser is not cleared of the punishment. Imam Ibn Rushd said: this testimony requires direct observation of his member in hers, made explicitly and not allusively; the majority adds that it must not diverge in time or place, except the famous corners case reported from Abu Hanifah: each witness may have seen the act in a corner of the house different from the corner seen by the other. The disagreement is whether testimony diverging in place is rejoined like testimony diverging in time, on which they agreed it is not; yet place resembles time. The Law evidently aims at the most careful verification of this punishment above the others.
The Hanafis said: the ruler asks them what zina is and how it happened, because the term covers the literal and the figurative, by the hadith: the two eyes commit zina, their zina is the look; the two hands commit zina, their zina is the grasp; the two feet commit zina, their zina is the walking; then the private parts confirm or deny it (reported by al-Bukhari (6243) and Muslim (2657)). He asks them how: because of the possibility of coercion, which removes the punishment, or the possibility of contact of the two members without penetration. He asks where: the act may have occurred in war territory or in the camps of rebels, which carries nothing, the ruler having no hand there, and that is a doubt. He asks when: they may have testified to an old act, making their testimony inadmissible, and the act may have occurred while he was a child or insane; the limit of age that removes the punishment is not fixed at a set period, it is left to the judge's assessment. He asks with whom: the woman may be his wife or his slave girl; sometimes they answer that they do not know her, which is a doubt, for she may be his son's slave girl. If they answer: we say no more, they are not punished, since they testified to zina being four and did not slander. If they specify: we saw him penetrate her like a staff into a kohl jar, a stylus into an inkwell or a rope into a well, the testimony is valid. The judge questions them; if they give satisfaction in private and public, he rules by their testimony, not resting on the appearance of uprightness, as a precaution for averting.
Ward off the punishments from the Muslims as much as you can; if he finds a way out, leave him his way, for it is better for the ruler to err in pardon than to err in punishment.
reported by at-Tirmidhi (1424), graded weak by the sheet
Push back the punishments as much as you find a way to push them back.
reported by Ibn Majah (2545), graded weak by the sheet
The Malikis said: they must testify to a single act of zina, at a single time and in a single place, testifying together and stating to the judge the unity of the moment of seeing; if they testify at different moments or differ over that moment, their testimony is void, and likewise if they differ over the places of seeing, over willing and forced, over zina and doubt, or over the woman's position (standing or lying, right or left side, above or below, west or east side of the house). The moment of seeing is the moment of carrying. The witnesses of zina are necessarily separated in the testimony of zina, whether suspicion arises or not, unlike other acts. They must testify at a single time to a single act by a single seeing, and that the member entered the woman's like a kohl stick into its jar, virgin or previously married: no disagreement is known here. It does not suffice to say: we testify that so-and-so committed zina with such-and-such; this requirement comes from the Law resting on covering, to the point that this pattern is found only very rarely.
Each of the witnesses may, for this purpose, look at the private part with the intention of learning how to give the testimony. It is recommended that the ruler ask the witnesses how they saw him act with her: was she on her back or her belly, did his member enter her vagina like a kohl stick into its jar? If they differ over these points, their testimony is void and they are punished, said Ibn 'Arfa, even though the questioning is recommended and not obligatory.
The Shafi'is said: the witnesses may not simply say: we saw him commit zina; they must describe what they saw, that is: we saw his member enter her vagina as a kohl stick enters its jar. The sheet gives three reasons. First the Prophet required Ma'iz's confession to be spelled out: did you make your member disappear in her as a kohl stick in its jar and a rope in a well? He said yes and he ordered his stoning; if the confession was verified, verifying the testimony is even more fitting. Then, in the case of al-Mughira ibn Shu'bah, the witnesses (Abu Bakrah, Nafi', Shibl ibn Ma'bad and Ziyad) were questioned before Umar: the first three described the act, but Ziyad said: I saw a breath rising, a jar sinking, and her two legs on his neck like two ears of a donkey; I know nothing beyond that. Umar said: Allah is greater, and he set the testimony aside as incomplete. Finally zina is a common term, and the Prophet said that the eyes, hands and feet commit zina: the ambiguity must therefore be lifted by describing the entry of the member into the member. Imam Ibn Qudamah said: they describe the zina saying: we saw his member in hers like a kohl stick in its jar and a rope in a well; this is the view of Mu'awiya ibn Abi Sufyan, az-Zuhri, al-Shafi'i, Abu Thawr, Ibn al-Mundhir and the people of opinion, by the hadith of Ma'iz: the explicitness required in the confession is all the more required in the testimony.
Some scholars said: the witnesses may look at that of the two persons in order to establish the testimony and obtain the deterrent effect of the punishment; their testifying that they saw the member disappear in the vagina suffices, and the comparison is a confirmation. As for naming the partner and the place, the qadi mentions that it is required, so that the woman is not one of those over whose permissibility they differ; the Prophet had asked Ma'iz: you confessed four times, with whom? Ibn Hamid said: this naming is not necessary, since it is not counted in the confession and the authentic hadith of testimony does not mention it.
The jurists differ: must the witnesses be gathered in one session when giving testimony, or may they come separately, one after another? The majority (Hanafis, Malikis and Hanbalis) requires the unity of the session: the witnesses must be gathered in one session at the time of testimony; if they come separately, their testimony is refused and they are punished, however many they are. Al-Kasani explained: their speech is in reality a slander (qadhf), and it leaves that description only if they are gathered in a single session at the time of testimony; if this condition is missing, the slander remains and carries the punishment, to the point that if they sat together in the witnesses' place in a corner of the mosque and then came one after another, their testimony is valid, since the whole mosque is one session; but if they were outside, and one entered and testified, then the second, the third and the fourth, they are punished, even if they were as numerous as Rabi'ah and Mudar. The sheet reports from Umar: if Rabi'ah and Mudar came separately, I would punish them all, from the last to the first; said before the Companions with no one objecting, which makes it a consensus.
Imam Ibn Qudamah transmitted from al-Khiraqi: if four come separately while the judge sits in his judgment seat and he has not risen before their testimony, it is valid; if some come after he has risen, they are accusers and are punished; Malik and Abu Hanifah said the same. Al-Shafi'i, al-Batti and Ibn al-Mundhir said: this gathering is not required, by "why did they not bring four witnesses" (surah an-Nur 13), which does not mention the session, and "take as witnesses against them four from among you" (surah an-Nisa 15); every testimony accepted when agreeing is also accepted when spread over several sessions, like other testimonies.
The sheet answers: the story of al-Mughira shows that the witnesses came one after another and Umar had them flogged for incompleteness, and Abu Bakrah asked: if another came to testify, would you have accepted him? Umar replied: yes, by the One who holds my soul. Moreover, if the session were not required, Umar could not have flogged them, since they could have been completed by a fourth in another session; and if three testify, are flogged, then a fourth comes to testify, his testimony is not accepted. As for the verse, it does not address the conditions: it mentions neither uprightness nor the description of the act. And the flogging verse is either absolute for all times or restricted; it cannot be absolute, since four witnesses could always come later, which would bar the commanded flogging; if restricted, it is best restricted by the session, which counts as one state, just as the right of retraction is known in it. Once this is established, their gathering at the moment of coming is not required: if they come separately, one after another, in one session, their testimony is accepted.
Malik and Abu Hanifah said: if they come separately, they are accusers, since they did not gather in coming, and their testimony is refused like that of those who do not testify in one session. And when they spread over several sessions, the punishment applies to all: whoever testifies to zina without completing the testimony incurs it, by the flogging verse (surah an-Nur 4). The Shafi'is said: no difference between separated or gathered witnesses, by the same verse and because every testimony whose number is completed in one session carries judgment, likewise if it is completed in two sessions or several, like other testimonies; time is not counted in testimony other than zina, so it must not be counted here, like immediate succession. Separating the witnesses dispels suspicion better and better prevents conspiracy and imitation: when collusion is feared, they are separated to test them by this separation.
The majority of jurists (Hanafis, Malikis, Shafi'is of the madhhab and Hanbalis of the madhhab) hold: if fewer than four testify, their testimony is not accepted and they are accusers (qadhafa) who all undergo the punishment of slander if the accused person demands it. The sheet cites the case of al-Mughira ibn Shu'bah: Abu Bakrah, Nafi' ibn al-Harith and Shibl ibn Ma'bad testified to zina before Umar, and Ziyad did not speak explicitly but said: I saw a shameful act. Umar praised Allah, did not establish the punishment against al-Mughira and had the three flogged, before Companions without objection. In another version of the account, Umar said before Ziyad spoke: I see a fine young man; I hope Allah will not allow a Companion of Muhammad to be disgraced on his tongue; Ziyad then described what he had seen without certainty of the rest, Umar said: Allah is greater, and ordered the three flogged. His phrase to the young man (you who resemble the eagle's plumage) means: as the eagle's plumage burns all it touches, so the sanction would inevitably fall on one of the two sides if the testimony fell short.
Salih transmitted in his Masa'il, from Abu 'Uthman an-Nahdi: a man came to Umar and testified against al-Mughira ibn Shu'bah, and Umar's face changed; then a second came and testified and his face changed; then a third came and Umar grew indignant. Then came a young man pointing with both hands, and Umar shouted at him: what is with you, you who resemble the eagle's plumage? Abu 'Uthman said: by Allah, I nearly fainted, then said: O commander of the faithful, I saw a shameful act. Umar said: praise be to Allah who did not let the devil gloat over the companions of Muhammad, then ordered the group flogged.
reported in the Masa'il of Salih
Imam Ibn Qudamah said: if the witnesses are not complete, the punishment applies to them in the view of most scholars, among them Malik, al-Shafi'i and the people of opinion; Abu al-Khattab mentions two narrations, and two views are reported from al-Shafi'i, one being: no punishment against them, for they came as witnesses, like four witnesses one of whom is a sinner. The sheet answers: the verse "then do not bring four witnesses, flog them" (surah an-Nur 4) imposes flogging on every accuser who does not bring four witnesses, and the case of Umar is consensual: he flogged Abu Bakrah and his companions when the fourth did not complete his testimony, before the Companions without objection. If one objects that their witnesses contradicted the rule, the answer is that they did not differ over the obligation of the punishment but over the validity of what they testified to.
If the four are complete but unsatisfactory, as slaves, open sinners or blind men, or if one of them is, the sheet mentions three narrations. The first: the punishment applies to them all; this is Malik's view, and the qadi holds it correct: their testimony is incomplete, so the punishment applies as if they were three. The second: no punishment; this is the view of al-Hasan, ash-Sha'bi, Abu Hanifah and Muhammad: they brought four witnesses and fall under the generality of the verse, since their number is complete and the rejection of the testimony is due to a cause not of their making, like four men of unknown status. The third: if they are blind, the punishment applies; if slaves or sinners, no punishment: this is the view of al-Thawri and Ishaq, since the blind man's lie is certain (he testified to what he did not see), while the truthfulness of the slave and the sinner is possible and their number complete. The companions of al-Shafi'i say: if the rejection is due to an apparent cause (blindness, slavery, manifest iniquity), two views; if hidden, no punishment, since what is hidden is hidden from the witnesses too and not their doing, unlike what is apparent.
If three men and two women testify, all are punished: women's testimony in this chapter is like no testimony at all; this is the view of al-Thawri and the people of opinion, and it strengthens the first narration and signals the punishment even against the blind man. Al-Kasani said: if fewer than four testify to zina, their testimony is not accepted, and our companions say they undergo the punishment of slander. Al-Shafi'i said: if they came as witnesses, they are not punished. According to this disagreement, if three testify and the fourth says: I saw them under one blanket, adding nothing, the three are punished and not the fourth, for he did not slander; unless he had first said: I testify that he committed zina, then explained his wording: he is then punished.
The jurists of the four schools agreed: if the four witnesses testify to zina and one of them retracts, the punishment is not established; they may have been truthful in the testimony and lying in the retraction, or truthful in the retraction and lying in the testimony, and no judgment is made in doubt, as when the witnesses' uprightness is unknown. Their lie is certain either way, in the testimony or the retraction, and no judgment is made by a liar's testimony. They do not become open sinners by their retraction, unless they say: we deliberately gave false testimony; then they do.
Imam al-'Imrani transmitted from shaykh Abu Hamid that this is a consensus, except what is reported from Abu Thawr: judgment would be made by their testimony, since it took place and the retraction does not void it, as if they retracted after the judgment. The sheet refutes: the judge only judges by their testimony; if they retract, nothing remains by which to judge, and the judge may only rule on testimony whose truthfulness predominates in his view; the retraction introduces a doubt barring the judgment, as if the witnesses became sinners after the testimony and before the judgment.
The disagreement is over who undergoes the punishment of slander: all of them, the retracting one alone, or the three without the retractor? And is there a difference whether the retraction precedes or follows the judgment? The Shafi'is and Zufar of the Hanafis: the punishment applies to the retractor alone, for he has confessed his own lying in his accusation; whoever does not retract does not undergo it, since one whose testimony establishes the punishment does not undergo it if he maintains it, and the dropping of the number after completion does not impose the punishment on those who remain, as if one of them died or became a sinner before execution.
The Hanafis and the Hanbalis in the two soundest narrations: if the witnesses retract, all undergo the punishment, since the number dropped by the retraction before execution, as if three had testified and the fourth refused. Al-Kasani details: if one retracts before the judgment, all are punished by our three companions, and by Zufar the retractor alone. His argument: their speech was testimony through the completeness of the quorum (four), and it reverts to slander only through retraction, which came from one only: his speech alone reverts to slander. The sheet replies: their speech becomes testimony only with the coupling of the judgment; before it, it is a slander that would deserve the punishment by the text were it not that it may become testimony, and if one retracts that possibility vanishes: their speech remains a slander and they are punished, like witnesses who were never more than three. If the retraction occurs after the judgment before execution, all are punished by Abu Hanifah and Zufar, and by Muhammad the retractor alone. If they retract before the judgment, all are punished without disagreement. After execution: if the punishment is flogging, the retractor alone undergoes it by consensus, for his retraction is valid only for himself; if it is stoning and the accused has died, the retractor undergoes it by the Hanafis, against Zufar. The Hanbalis also transmit a narration in which only the three undergo it, not the retractor: this is the choice of Abu Bakr al-Khiraqi and Ibn Hamid; for if he retracts before the punishment he is like the repentant before execution, and sparing him enables the retraction that serves the accused, while the threat of punishment would hold him back and forfeit that benefit.
The Malikis: if one of them retracts after the testimony is given and before the judgment, the accused person is not punished and all the witnesses undergo the punishment; after execution of the punishment, only the retractor. The Mudawwana al-Kubra reports: Malik was asked about four witnesses one of whom retracts before the ruler establishes the punishment: does one flog the accused and the three, or only the retractor? Malik replied: the retractor is flogged, and the three are all flogged the punishment of slander. Asked about retraction after execution: I did not hear that from Malik. Ibn al-Qasim said: I see that only the retractor is flogged, not the three who remained.
The jurists of the four schools agreed: a confession of zina followed by a retraction before the punishment or during its execution ends the proceedings and the punishment is not established; only the Malikis add a detail. The vizier Ibn Hubayrah said: they agreed that if the confession is followed by retraction, the punishment falls away and the retraction is accepted, except Malik: if he retracts by an excuse of doubt, such as saying: I penetrated in a corrupt marriage, or: I thought she was a slave in common ownership, his retraction is accepted like the madhhab of the community; if he retracts without any doubt, two narrations: it is accepted, or it is not accepted at all. Al-Mawardi said: the retraction is accepted and the punishment falls, and Abu Hanifah and most jurists say so, whether part of the punishment was executed or not.
Al-Hasan al-Basri, Sa'id ibn Jubayr, Malik in one narration and Dawud ibn 'Ali said: the retraction is not accepted and the punishment does not fall, whether executed or not. Some Iraqis said: it is accepted before the punishment begins, not after, citing the hadith: whoever displays to us his shamelessness, we execute on him the punishment of Allah, which would show the retraction has no effect after that display; and because the right was established by his confession, like the rights of men. The sheet answers: retraction is a doubt, and the punishments are to be warded off by doubts; and when Ma'iz fled the stones and they killed him, the Messenger of Allah said: why did you not leave him, perhaps he would have repented and Allah would have accepted his repentance; had retraction had no effect, leaving him would not have been recommended after the order to stone him. It is also reported that a man confessed zina before Umar and then retracted; Umar released him and said: leaving off a punishment in doubt is better than establishing it in doubt; Abu Bakr did the like, and no Companion contradicted them, which is a consensus. The punishment of Allah established by speech can fall by speech, like the withdrawal of the witnesses' testimony. As for the hadith of shamelessness, the one who retracts is not the one who displays it: he is so only if he maintains his confession. As for the comparison with the rights of men, two differences bar it: the rights of Allah are warded off by doubts, not the rights of men; and in men's rights he must acknowledge them and his retraction is not accepted there, while in the rights of Allah only repentance is incumbent on him and he is advised not to confess.
Muhammad ibn al-Munkadir reported from Ibn Hazzal, from his father, that the Messenger of Allah said to him: woe to you, Hazzal, it would have been better for you to cover him with your garment.
reported by Abu Dawud (4377) and Ahmad (21942), authentic hadith
Imam Ibn Qudamah said: a condition of establishing the punishment by confession is that it last until the punishment is complete; if he retracts or flees, it is dropped. 'Ata, Yahya ibn Ya'mar, az-Zuhri, Hammad, Malik, al-Thawri, al-Shafi'i, Ishaq, Abu Hanifah and Abu Yusuf said so. Al-Hasan, Sa'id ibn Jubayr and Ibn Abi Laylah said: the punishment is executed and he is not spared, for Ma'iz fled and they killed him without sparing him, and he said: take me back to the Messenger of Allah, my people deceived me; yet his diya was not incumbent on his killers. Al-Awza'i said: if he retracts from an accusation of zina, the punishment of slander applies to him; from theft or drinking, a correction less than the punishment. The sheet answers with Ibn 'Abd al-Barr: the hadith of the fleeing Ma'iz and of Buraydah most clearly establishes that retraction is accepted; Buraydah reported: we, the companions of the Messenger of Allah, used to say that the Ghamidi woman and Ma'iz ibn Malik could have retracted after their confession, or that had they not retracted after their confession they would not have been sought, and he stoned them only at the fourth declaration (reported by Abu Dawud). Retraction is a doubt and the punishments are warded off by doubts; the confession is one of the two proofs of the punishment and it falls by retraction as the testimonial proof does when it retracts before execution. Ma'iz's flight was not explicit: the one who flees is therefore not pursued, and if he is killed nothing is guaranteed, for the Prophet did not impose the diya on those who killed Ma'iz; if he says: take me back to the ruler, he must be returned and the punishment may not be completed, and if it is completed there is no guarantee. If he says: I lied in my confession, or: I did not do it, he is left; if he is killed afterwards, the diya is due, for his confession has vanished by the retraction and he is like one who never confessed, with no retribution against the killer, since the scholars differ over the validity of his retraction and that difference is a doubt barring retribution. At-Tahawi said: the Companions drew from the hadith of the fleeing man (why did you not leave him a way out) that retraction is accepted, and applied it to all the punishments of Allah, without restricting it to zina.
The jurists differ: if the husband is one of the four witnesses, is his testimony to his wife's zina accepted? The Hanafis: if four testify, including the husband, and he had not slandered before, the punishment is established against the woman; his testimony is more acceptable than a stranger's, further from suspicion, for a man normally covers what touches his wife, and it resembles a father's testimony about his son. If he slandered her first and then brings three others as witnesses, the three are punished accusers and the husband performs the li'an (the mutual imprecation), for the slander having come first, the imprecation falls on him. If he comes with three and they fail to satisfy, the punishment is averted from her, the punishment of slander is averted from the three because the speech of unqualified people does not count as an accusation, and the imprecation is averted from the husband because he is a witness and not an accuser: he came in the manner of witnesses, and the number of four was reached in form. If the three with him are blind, he performs the li'an and they undergo the punishment of slander, since the blind man's testimony is void outright. If he brings four unqualified men, he is an accuser and the imprecation applies, for the fall of the testimony attaches the imprecation to his slander.
Imam Abu Bakr al-Jassas reported: our companions hold the testimony valid and the punishment established against the woman; Malik and al-Shafi'i hold that the husband performs the li'an and the three are punished, and a like view is reported from al-Hasan and ash-Sha'bi, and from Ibn 'Abbas. Al-Jassas argues: the verse "take as witnesses against them four from among you" (surah an-Nisa 15) does not distinguish the husband from strangers, and the slander verse (surah an-Nur 4) flogs the stranger-accuser who brings four witnesses including the husband; moreover the husband's testimony about his wife is valid in the other rights, in retribution, theft, slander and drinking: so it is in zina. To the objection (the husband must perform the li'an if he accuses his wife, so he cannot be a witness), he answers: coming in the manner of witnesses with three others, he is neither accuser nor subject to the li'an, just as the stranger who brings four witnesses with him does not incur the punishment.
The majority (Malikis, Shafi'is and Hanbalis): only the three are flogged (except one Shafi'i view) and the husband performs the li'an; if he does not, he is punished, by "those who accuse their wives without witnesses except themselves, the testimony of each of them is four testimonies by Allah" (surah an-Nur 6): the husband's testimony was given no effect. It is reported from Qatadah, from Jabir ibn Zayd, from Ibn 'Abbas: the husband performs the li'an and the three are punished; the word of a single Companion with no known opponent: if it spread, it is a consensus, otherwise it overrides analogy. The arguments: a party in a case cannot be its witness, like the heirs of the slain; his testimony to her betrayal would not be accepted, like his testimony about a deposit she holds for him; whoever can affirm his word by imprecation, his testimony is not accepted in what admits his imprecation, like establishing lineage; and the husband has become an enemy by what he uncovered, more than by blows and insults, and the testimony of an enemy against his enemy is rejected. The remaining three do not complete the proof; do they undergo the punishment? Two views: no, say the Shafi'is in one view, for they came in the manner of testimony and not of slander, and had they been accusers their testimony would not have been accepted even complete; yes, say the Malikis, the Shafi'is in the other view and the Hanbalis, for having left completeness they are accusers who exposed the woman to the charge of zina like open accusers, and Umar's case, flogging the three witnesses of al-Mughira when Ziyad abstained from speaking out, shows it.
The sheet also treats the unmarried woman whose pregnancy shows: is the punishment established by it? The Malikis: the punishment of zina is established against the pregnant woman with no husband, without distinction between the belly, the confession and the proof, by the hadith of Umar: stoning is a right in the Book of Allah against whoever, man or woman, committed zina when married, when the proof is established, or there is the belly or the confession (reported by al-Bukhari (6442) and Muslim (1691)). If she says: I got married, or: I was coerced, it is not accepted from her except with proof of what she claims, unless she came seeking help while bleeding; then the punishment is averted. Ibn al-Qasim said: if she is passing through, a stranger to the land, no punishment against her. The majority (Hanafis, Shafi'is and Hanbalis): pregnancy alone establishes nothing, whether she has a husband or a master or not, whether she claims coercion or stays silent: no punishment without proof or confession, for the punishments fall away by doubts. Ibn Qudamah said: the woman without husband or master does not incur the punishment by her pregnancy; she is questioned, and if she claims coercion or a doubt, or does not confess the zina, she is not punished: this is the view of Abu Hanifah and al-Shafi'i. Malik said: the punishment applies if she resides in the land and is not passing through, unless signs of coercion appear (cries for help). It is reported that Uthman was brought a woman who gave birth at six months and he ordered her stoned, and 'Ali said: you have no way against her, Allah said: "and his carrying and his weaning are thirty months" (surah al-Ahqaf 15), which shows Uthman stoned because of pregnancy. It is also reported from 'Ali: O people, zina is of two kinds: secret zina, whose witnesses stone first, and open zina, which appears by the belly or the confession, and the ruler stones first; the word of the masters of the Companions with no known opponent in their time. The sheet answers: pregnancy may come from a forced or doubtful act, and the punishment falls by doubts; it has even been said that a woman may conceive without penetration, by the entry of the seed, which has occurred; and the reports from the Companions contradict one another.
The jurists agree on the recommended character of prompting (talqin) the confessor to withdraw in the punishments of Allah. The sheet cites the hadith of Abu Hurayra: a man came to the Messenger of Allah in the mosque and said: Messenger of Allah, I committed zina; the Prophet turned away, and the man pressed on up to four times; when he had testified against himself four times, the Prophet asked: are you insane? No. Are you married? Yes. He ordered that he be stoned (reported by al-Bukhari (6439) and Muslim (1691)). It also cites the hadith of Ibn 'Abbas about Ma'iz: perhaps you kissed, or touched, or looked? He said no; the Prophet asked: did you penetrate her, without allusion? He answered, and the Prophet ordered his stoning (reported by al-Bukhari (6438)). And the hadith of Sulayman ibn Buraydah: Ma'iz came saying: purify me; the Prophet said: woe to you, go back and ask Allah's forgiveness and repent; he returned several times, then said: of zina; the Prophet asked whether he was insane, whether he had drunk wine; a man rose and swore there was no smell of wine, he confessed and was stoned; then the woman of Ghamid came saying: purify me, he told her: go back and ask forgiveness; she said: you want to send me back like Ma'iz ibn Malik; she was pregnant by zina, he told her: wait until you give birth, a man of the Ansar took charge of her, and after the birth the Prophet had her stoned (reported by Muslim (1695)).
Imam an-Nawawi said: the prompting to retract came from the Prophet, the rightly guided caliphs and those after them, and the scholars approved it unanimously. Imam Ibn Battal cited al-Muhallab: this hadith proves the permissibility of prompting the confessor toward what would ward off the punishment; the word zina covers the look and all the limbs, and the Prophet did not establish the punishment before certainty, the warding off by doubts being part of his ways. Others draw from it that the punishments are only established by the explicit and not by allusions: if witnesses declare that a man committed zina without saying they saw him penetrate, their judgment is that of accusers and not witnesses. Al-Muhallab cited prompting after the Prophet: Malik transmitted from Yahya ibn Sa'id that a man came to Umar in Syria saying he had found a man with his wife; Umar sent Abu Waqid to question the woman, informed her she would not be seized on his word, and prompted her to withdraw; she refused and Umar stoned her. It is also reported that a man said to be a thief was brought to Umar; he said: I see a hand that is not a thief's hand; the man swore he was not a thief and Umar released him. Ash-Sha'bi reported that a pregnant woman named Shurahhah was brought to 'Ali; he prompted her: did a man force you? No. Did it happen to you asleep? No. Is your husband perhaps one of our opponents and you refuse to name him? No. He kept prompting her and she kept denying, and he stoned her. Abu Mas'ud released a camel thief after asking him whether he had found it. Al-Muhallab concluded: this prompting, at all its levels, is not an obligatory sunna, it rests on the ruler's choice, and he may not prompt or hint, by the word: a proof, otherwise the punishment on your back; prompting is not permitted between the two parties in the rights and in people's litigation, nor for the notorious offender whose act has become clear or against whom witnesses have testified: the ruler must then establish the punishment. Imam al-Kasani adds: it is recommended to prompt the confessor with the words: perhaps you touched her or kissed her, as the Prophet did with Ma'iz and with the thief; and retraction is valid in the confession of theft and drinking, rights of Allah, except for the restitution in theft, a right of men.
These rules show the Law's care for protecting honor: the high number of witnesses, their strict conditions, the explicit description, the always admissible retraction and the recommended prompting mean that in practice the punishment is almost never established by testimony, and that confession, itself hedged with precautions, can always be withdrawn. The judge finds in them the frame of doubt that protects people, and the community the standard of a justice that prefers averting to punishing.