What is the ruling on witnesses who retract their testimony concerning a penal offense (Hadd)?
General Chapter
Al-Mughni
Book of Ḥudūd (Prescribed Penalties)
Primary text
If two or three witnesses retract their testimony, the Hadd punishment applies to all of them, according to the sounder of the two narrations, which is the position held by Abu Hanifa. This ruling is established because the count of necessary witnesses is diminished by the retraction before the punishment is executed, thus requiring the Hadd upon them, similar to the case where a fourth witness refuses to testify after three have already done so. The objection that the Hadd was already obligatory upon the others due to their testimony is invalidated by cases where all witnesses retract or when only one retracts, in which cases the Hadd is established and then lifted, and subsequently re-established upon the remaining parties due to the lifting.
Supporting text
The second narration states that only the retracting witness receives the Hadd punishment, a view favored by Abu Bakr and Ibn Hamid. This is because the retracting witness is considered repentant before the judgment is executed, causing the punishment to lapse for him. Furthermore, exempting the retracting witness allows for the benefit derived from his retraction, which secures the well-being of the accused, whereas punishing him would discourage retraction out of fear of punishment, thereby eliminating the benefit and confirming the harm.