What is the proper course of action regarding confession for a well-known sin requiring a Hadd punishment?
General Chapter
Al-Mughni
Book of Testimonies
Primary text
If the sin is notorious, the view held by Al-Qadi is that confession is preferable so that the Hadd punishment may be established, as concealing it serves no purpose if it is already widely known. However, the sounder view is that refraining from confession is preferable. This is evidenced by the Prophet, peace be upon him, offering those who confessed in his presence—Ma'iz and the thief who had confessed—the opportunity to retract their confessions, even though the theft was notorious due to the confession. The Prophet disliked confession. There is no command or encouragement for confession in either the Book or the Sunnah, nor is analogy valid here; rather, the Lawgiver mandated concealment and encouraged those confessing to retract. It was said to Uhayzil, who had commanded Ma'iz to confess, "O Uhayzil, if you had covered him with your garment, it would have been better for you."
Supporting text
The companions of Al-Shafi'i hold that repentance in such a case requires confession for the purpose of establishing the Hadd, but this is not correct because true repentance is established without confession, as evidenced by the reports concerning previous forgiveness through seeking forgiveness and abandoning persistence, as well as the verses concerning forgiveness through seeking pardon. Furthermore, the prerequisite for repentance precedes the act itself, as indicated in the reports.