Is the presence of the ruler (Imam) or the witnesses legally required at the implementation of a prescribed punishment?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
The presence of the Imam or the original witnesses is not obligatory for executing the prescribed punishment. This is the position held by Al-Shafi'i and Ibn al-Mundhir. The supporting evidence is that the Prophet, peace and blessings be upon him, commanded the stoning of Ma'iz and the woman of Ghāmid, yet he did not personally attend their punishment, which was based on their confessions. Similarly, he instructed Uways al-Qarani to go to a woman if she confessed and stone her, without attending himself. Furthermore, since it is a Hadd punishment, it does not necessitate the presence of the Imam or the witnesses, similar to other Hadd punishments. We do not concede that their absence or non-initiation of the stoning constitutes a doubt (shubhah) that invalidates the Hadd.
Supporting text
Abu Hanifa mandates the presence of the witnesses if the Hadd is established by evidence, and they must commence the stoning. If established by confession, the Imam must be present and commence the stoning. This is based on the report from Ali, may Allah be pleased with him, stating that when stoning is due to confession, the Imam initiates the stoning, followed by the people; if due to evidence, the witnesses initiate. The justification is that without their presence, it creates a doubt, and Hadd punishments are waived due to doubts. The view attributed to Ali regarding initiation is understood by us as being a recommendation for virtue and desirability (Istihbab).