Is the prescribed punishment (hadd) applicable if the required number of witnesses for Zina (adultery/fornication) is not met?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The prescribed punishment is applicable upon those who accuse of Zina if they do not produce four witnesses. This is the opinion held by the majority of scholars, including Malik, Al-Shafi'i, and the proponents of the Ray' school of thought. The evidence for this ruling is derived from the statement of Allah the Almighty: "And those who accuse chaste women and then do not produce four witnesses, then flog them eighty stripes" (Quran 24:4). This verse mandates flogging upon every slanderer who does not bring four witnesses. Furthermore, it is supported by the consensus of the Companions, as 'Umar flogged Abu Bakra and his companions when the fourth witness did not complete his testimony, in the presence of the Companions, and no one objected. In a narration, 'Umar ordered the flogging of those three men who testified against Al-Mughira ibn Shu'ba when the fourth witness, Ziyad, did not fully support the testimony, even though 'Umar had expressed hope that Ziyad would not bring disgrace upon a Companion of the Prophet (peace be upon him).
Supporting text
A dissenting opinion is narrated from Al-Shafi'i, suggesting that the punishment should not be applied because they acted as witnesses, and the punishment for false witness is not incumbent unless they are four, similar to the case where one of the four witnesses is a known sinner (fasiq).