Tafsir of An-Nur 24:4

(And those who accuse chaste women...) This is the beginning of the exposition of the ruling for one who attributes adultery to another, following the exposition of the ruling for one who commits it.

The relative pronoun (al-ladhina), according to the preference of the second scholar in al-Talwih, is in the accusative case due to an omitted verb indicated by the command verb that follows it—that is, "Scourge those who [accuse]." It is also permissible for it to be in the nominative case as an initial subject (mubtada'), and its predicate is not hidden from you. The verse was revealed regarding the wife of Uwaymir, as in Sahih al-Bukhari; and it is narrated from Sa'id ibn Jubayr that it was revealed due to the incident of the Slander (al-Ifk).

Accusation (ramy) is a metaphor for verbal abuse, and the injury of the tongue is like the injury of the hand. The intended meaning here is accusation of adultery, as indicated by placing this after the mention of the adulteress, while making the object "chaste women" (al-muhsanat), which denotes purity from adultery; this is almost explicit in that regard.

It is argued that the requirement of four witnesses—testifying to the occurrence of that which was alleged, as indicated by His saying, "Then they do not bring four witnesses, then scourge them eighty lashes"—is a contextual indicator of the intent, based on the knowledge that there is nothing whose proof by testimony is contingent upon four witnesses except adultery.

The apparent meaning is that the intended are chaste women. Accordingly, the establishment of the obligation to scourge those who accuse a chaste man is by the implication of the text (dalalat al-nass), due to the certainty of the removal of the differentiator, which is the attribute of femininity, and the autonomy of repelling the shame of what he was accused of—in a way that its understanding is not dependent on the establishment of the capacity for legal reasoning (ijtihad). Likewise is the establishment of the obligation to scourge one who accuses a chaste man or a chaste woman by that same implication. Otherwise, "those who accuse" (alladhina) is for the masculine plural, and the specification of males on the side of the accuser and females on the side of the accused is due to the particularity of the occasion.

It is said the intent is "chaste private parts" (al-furuj al-muhsanat), but the attribution of "accusation" rejects this, along with the inconsistency with the explicit meaning involved in describing them as "chaste." Ibn Hazm said—and al-Zahrawi narrated it—that the intent is "chaste souls." Abu Hayyan used as evidence the Almighty’s saying, "And chaste women from among the believers," for if "chaste" (al-muhsanat) were not capable of generalization, it would not have been qualified. This was challenged by the fact that "from among the women" there is a contextual indicator for generalization, whereas here there is none. Making the ruling for men being the same a contextual indicator is not without issue; thus, it is better to rely on what preceded.

Ihsan (chastity/protected status) here is not realized except by the realization of purity from adultery—which is its well-known meaning—and by freedom, puberty, sanity, and Islam. Abu Bakr al-Razi said: "We do not know of any disagreement among the jurists on this," and perhaps others knew, as you shall know, God willing. Its establishment is by the confession of the accuser or the testimony of two men, or one man and two women, contrary to Zufar. The reasoning for considering purity from adultery is apparent. However, in Sharh al-Tahawi, regarding the discussion on purity, it is not limited to purity from adultery, as he said: "It is that he has not had intercourse with a woman by adultery, nor by suspicion, nor by an invalid marriage in his lifetime." If he did so once—meaning the invalid marriage—his integrity ('adalah) falls, and there is no prescribed punishment (hadd) for his accuser. Likewise, if he had intercourse outside of ownership, as in the case of a slave-girl shared between him and another, his integrity falls. If he had intercourse within ownership but it was prohibited, it is examined: if the prohibition is temporary, his integrity does not fall—as if he had intercourse with his wife during menstruation or his Magian slave-girl. If the prohibition is permanent, his integrity falls—as if he had intercourse with his slave-girl who is his foster sister.

If he touched a woman or looked at her private parts with desire, then married her daughter and consummated the marriage, or [married] her mother, his ihsan does not fall according to Abu Hanifah, may mercy be upon him; and according to the two [Abu Yusuf and Muhammad], it falls. If he had intercourse with a woman in marriage, then married her [again], his ihsan falls.

It is mentioned in books other than the Kitab that Abu Hanifah requires for the falling of the hadd upon the accuser of one who had intercourse under a permanent prohibition, that the prohibition be established by a famous (mashhur) tradition—like the prohibition of intercourse with one married without witnesses, established by his saying, peace be upon him: "There is no marriage without witnesses," which is a famous tradition—or established by consensus, like one whom his father had intercourse with in marriage or through ownership, if the son married her or bought her and had intercourse with her. Similar to that, in his view, is having intercourse with a woman he has committed adultery with, for he does not consider the disagreement once the prohibition is established by text; and here it has been established by it, for the Almighty says: "And do not marry those whom your fathers married from among women." He only considers it [the disagreement] when it is established by analogy or precaution, such as the establishment regarding looking at the private parts and touching with desire, for the establishment in what was mentioned is to place the cause in the position of the effect as a precaution. From this, the state of its many branches is known, so let it be memorized.

What was mentioned regarding the falling of the ihsan of one who had intercourse with his slave-girl who is his foster sister—there is a disagreement from al-Karkhi, for he said the ihsan does not fall by having intercourse with her, and this is the opinion of al-Shafi'i, Malik, and Ahmad, due to the existence of ownership, so it is like having intercourse with his Magian slave-girl. The objection is that the prohibition in the case of the Magian slave-girl can be lifted, so it is temporary, while the prohibition of fosterage cannot be lifted, so the place was never acceptable for legitimacy at all.

He required in ownership that its invalidity does not appear by a claim of right (istihaqaq); so if he bought a slave-girl, had intercourse with her, and then she was claimed by another, a person who accuses him is not lashed. In Kafi al-Hakim, al-Qahistani, and al-Fath, it is stated that intercourse in an invalid purchase causes the hadd to fall upon the accuser, and some interpreted it according to what we mentioned.

Some noble scholars said: "Just as purity from adultery is required, freedom from the accusation of it is required." By this, they caution against accusing a woman who has a child without a known father, for they mentioned that one who accuses her is not lashed because of the suspicion (tuhmah). This was mentioned by al-Haskafi in the chapter of Li'an in Sharh Tanwir al-Absar.

Sodomy is not analogized to adultery; if one accuses another of it, the accuser is not lashed, contrary to Abu Yusuf and Muhammad, and they have differed on many rulings mentioned by Zayn al-Din in his Bahr.

As for considering freedom (hurriyah), it is because the name ihsan is applied to it. God the Almighty said: "Then upon them is half of what is upon the chaste women of punishment." The intent by "chaste women" here is free women; thus, a slave is not muhsan in this sense. His being muhsan in another sense, like Islam and others, makes him muhsan from one perspective and not another; that is a suspicion (shubhah) regarding his ihsan, so it becomes necessary to repel the hadd from his accuser. Thus, he is not lashed until he is muhsan by all the concepts to which the word ihsan is applied, except what has been agreed upon as not being considered in the realization of ihsan, which is that the accused is a wife or the accused is a husband, for it came in its meaning in His saying, "And chaste women from among the believers," meaning the married ones; and this is not considered in the ihsan of accusation, but rather in the ihsan of stoning.

Then, there is no doubt that ihsan has been used in the sense of freedom, as you heard, and in the sense of Islam in His saying, "And when they have been chaste (uhsinna)." Ibn Mas'ud said: "Converted to Islam." This is sufficient to prove the consideration of Islam in ihsan. From Dawud, there is the non-requirement of freedom, and that one who accuses a slave is lashed. As for considering sanity and puberty, there is consensus upon it, except what was narrated from Ahmad, may mercy be upon him, that the boy who is capable of intercourse is muhsan, so his accuser is lashed. The more correct opinion from him is the agreement with the community.

Malik’s saying regarding the girl who is capable of intercourse is that her accuser is lashed, especially if she is approaching puberty, for the hadd is for the reason of bringing shame, and one like her is brought shame. Likewise is his saying and the saying of al-Layth: that he lashes the accuser of the insane person for that reason. The community prohibits the idea that the boy and the insane person are brought shame by attributing adultery to them; rather, perhaps one who attributes it to them is laughed at, either due to the lack of soundness of intention from them or due to them not being addressed with prohibitions, and such like. Even if we assumed the attachment of shame to the adolescent, it is not complete, so the hadd is repelled.

Similar to the boy and the insane person in that one might be laughed at for attributing adultery to them are the ratqa' (vaginally occluded) and the castrated (majbub); rather, they are more deserving of that due to it not being imaginable in them, and thus one is not lashed for accusing them, except what was narrated from Sa'id and Ibn Abi Layla that he is lashed for accusing a dhimmi (non-Muslim citizen) if he has a Muslim child; and likewise what was said: that he is lashed for accusing her if she is under a Muslim.

Furthermore, Islam and freedom, if they were not present at the time of the adultery being accused, but were present at the time of the accusation, do not provide anything. If he accuses a Muslim woman who committed adultery while she was a Christian, or a Muslim man who committed adultery while he was a Christian, and said: "You committed adultery while you were an infidel," or accuses a freedman who committed adultery while he was a slave, or a freedwoman who committed adultery while she was a slave, and said: "You committed adultery while you were a slave," he is not lashed. Likewise for the mukateb (contracted slave) and mukatebah, and the warring infidel if he commits adultery in the land of war then converts to Islam.

It is understood from their speech that puberty and sanity are like Islam and freedom in this. They have explicitly stated regarding when one says: "You committed adultery while you were young" or "while you were insane," that he is not lashed, and the pivot in repelling the hadd in all of that is truth. Hence, it is said in al-Mabsut: "If the woman who was had intercourse with was forced, her ihsan falls, and her accuser is not lashed, just as the ihsan of the forced individual who had intercourse falls and his accuser is not lashed, because force removes the sin but does not remove the act from being adultery."

However, it is mentioned therein that one who accuses an adulterer has no hadd upon him, whether he accused him of that specific adultery or another adultery of its kind, or was vague at the time of accusation. The reasoning is that God the Almighty imposed the hadd upon one who accuses someone described with ihsan, and with adultery, ihsan does not remain, so the hadd is not established, contrary to Ibrahim and Ibn Abi Layla. Yes, if the accusation is of adultery for which the accused has repented, the accuser is punished with ta'zir (discretionary punishment). This implies that the falling of the hadd in the previous issues does not need the qualification; so let it be considered.

If a Magian marries his mother or daughter, then converts to Islam and the marriage is annulled, and a Muslim accuses him of it while he is in the state of Islam, he is lashed according to Abu Hanifah, may mercy be upon him, based on his view that the marriages of the Magians have the status of validity. The two Imams said: He is not lashed, based on the fact that they do not have the status of validity, and this is the opinion of the three Imams. It is not known that there is any disagreement among those who consider freedom in ihsan that there is no hadd upon one who accuses a mukateb who died leaving payment, because of the possibility of suspicion in the condition of the hadd—which is ihsan—due to the difference of the Companions, may God be pleased with them, regarding whether he died free or as a slave. That requires the repelling of the hadd, and because it is repelled by suspicion.

One who accuses a mute person is not lashed, for there is a possibility that he would confirm it if he were to speak, and his gesture is not relied upon here, even if they say: "It takes the place of his expression in some rulings," because of the existence of the possibility in it. They also required that ihsan be found at the time of the hadd; even if the accused apostatizes, the hadd falls, and if he converts to Islam afterward, [it does not return]. Likewise if he commits adultery, or has prohibited intercourse, or becomes demented or mute, and that remains, he is not lashed, as in Kafi al-Hakim.

They also required that he does not die before the accuser is lashed, because the hadd is not inherited, and that the accused not be the son of the accuser or the son of his son, for one is not lashed for accusing either of them, to other such things as you will know, God willing. Most jurists did not explicitly state the conditions of the accuser, but it is understood from their speech that it is required for him to be a sane adult, so a boy is not lashed if he accuses, but he is punished with ta'zir; an insane person is not lashed, nor a drunkard unless he became drunk on a prohibited substance; and he must be a speaker, so a mute is not lashed because of the lack of explicit statement of adultery—Ibn al-Shalabi explicitly stated this from al-Nihayah. And he must be willing, so a forced person is not lashed as an accuser; and in the land of justice, so one is not lashed for an accusation in the land of war or rebellion. The verse holds an indication of some of that.

It is possible to count among the conditions that he be aware of the prohibition in reality or in law—that is, by being raised in the land of Islam. But in Kafi al-Hakim: a warring infidel entered the land of Islam with safe-conduct and accused a Muslim, he is lashed in his latter opinion, which is the opinion of his two companions. The apparent meaning is that he is lashed even if his accusation was in the moments of his entry, and perhaps the reason is that adultery is prohibited in every religion, so accusing with it is also prohibited, thus he is not confirmed in ignorance.

It is required that the accusation be an explicit statement of adultery in whatever language it may be, as a group of jurists have explicitly stated. They attached to it some expressions by which the hadd is established by tradition and consensus. Thus, he is lashed by saying: "You committed adultery" (zanayta) or "adulterer" (zani) with a static 'ya', and likewise "O adulterer" (ya zani) with an emphasized 'hamzah' according to Abu Hanifah and Abu Yusuf, contrary to Muhammad, for he is not lashed by that in his view because it is true in his view in the sense of "ascending" (al-su'ud). It was challenged that this is only understood if mentioned associated with the place of ascending. On that note, the school should be that if it is said with the mention of the place of ascending in a state of anger and cursing, it is an accusation; indeed, it was confirmed in al-Mabsut that there is a hadd if he says: "You ascended" (zan'ta) in the mountain or on the mountain in a state of anger.

If he said to a woman: "O adulterer" (ya zani), he is lashed by consensus, and it was explained in al-Jawharah that the original in speech is the masculine. If he said to a man: "O adulteress" (ya zaniyah), he is not lashed according to the Imam and Abu Yusuf, because he diverted his speech, describing the man with the description of a woman. Muhammad said: He is lashed, because the 'ha' enters for exaggeration, as in 'allamah. It was answered that its being for exaggeration is metaphorical, rather it is for the feminine gender for which it is known; even if it were true in that, the hadd is not obligatory due to doubt.

He is lashed by saying: "You are more adulterous than so-and-so" or "than me," according to what is in al-Zahiriyah, and that is the apparent meaning. However, in al-Fath from al-Mabsut, there is no hadd in "You are more adulterous than so-and-so" or "more adulterous than all people," and it was explained in al-Jawharah that its meaning is "You are more capable of adultery," and in al-Fath that the af'al form in such a case is used for preference in knowledge, as if he said: "You are more knowledgeable of adultery." It is not hidden that the intention of that in a state of cursing is remote. In al-Khaniyah, in "You are more adulterous than all people" or "more adulterous than so-and-so," there is a hadd, and in "You are more adulterous than me," there is no hadd. The differentiation is not hidden. It may be said that his saying: "You are more adulterous than so-and-so" involves attributing adultery to so-and-so and associating the addressee with him in that, unlike "You are more adulterous than me," for it involves attributing to himself the adultery, and that is not an accusation; thus it is not an accusation of the addressee because it is associating him in what is not an accusation.

He is lashed for "You are not the son of your father," because it contains the attribution of adultery to the mother, and because it came in the tradition from Ibn Mas'ud: "There is no hadd except in accusing a chaste woman or disowning a man from his father." It is qualified as being in a state of anger, for in a state of contentment, it is intended as scolding by denying his similarity to him. It was mentioned that the requirement of analogy is that there is no hadd for it absolutely, because it is possible to deny lineage from the father without the mother being an adulteress in every aspect, such as being had intercourse with by suspicion and giving birth during the waiting period of the one who had intercourse. However, that was left for the tradition.

There is no hadd for innuendo (ta'rid), such as saying: "I am not an adulterer," or "My mother is not an adulteress." This is the opinion of al-Shafi'i, Sufyan al-Thawri, Ibn Shubrumah, and al-Hasan ibn Salih, and it is the famous narration from Ahmad. Malik said—and it is a narration from Ahmad—that he is lashed for innuendo, based on what al-Zuhri narrated from Salim from Ibn 'Umar, who said: 'Umar, may God be pleased with him, used to inflict the hadd for innuendo, and it is narrated from 'Ali, may God honor his face, that he scourged a man for innuendo, and because when the intent is known by its evidence from the context, it becomes like the explicit. The response of the community is that the Lawgiver did not consider the like of it, for He prohibited the explicit engagement of a woman whose husband has died during the waiting period, but permitted innuendo, saying the Exalted: "And do not promise them in secret," and the Almighty said: "There is no blame upon you for what you hint at in the betrothal of women, or what you conceal within yourselves." So when it is established from the Law that their rulings are not unified other than in the hadd, it is not permitted to consider the like of it in a way that necessitates the hadd, which is [to be treated with] precaution in repelling it. This is more appropriate than the argument that the Prophet, may God bless him and grant him peace, did not impose the hadd upon the one who said: "O Messenger of God, my wife gave birth to a black boy," hinting at his own self, for imposing the hadd of accusation is dependent on the claim, and the wife does not claim that.

There is no hadd for "Your having intercourse with so-and-so was prohibited," "You had prohibited intercourse," "You committed adultery with so-and-so," or "O son of a prohibited one" (haram-zadeh), or "Go and say to so-and-so: 'You are an adulterer,'" so the messenger went and said that to him, by saying: "So-and-so says you are an adulterer," not if he said to him: "You are an adulterer," for the messenger is lashed in that case.

The implementation of what has a hadd and what does not have a hadd is in the books of jurisprudence. Our saying "in such-and-such there is a hadd upon the intention of it" [applies] when the condition understood from His saying, the Exalted: "Then they did not bring..." etc., is realized. The requirement of bringing four witnesses is a tightening upon the accuser. It is required that they be men, for they have explicitly stated that there is no place for the testimony of women in hudud (prescribed punishments). The appearance of the 'ta' in the number indicates the requirement that they be as such.

It is not required for them to be of upright character ('adalah), for the necessity of the lashing from not bringing four witnesses of upright character would follow, as stated in al-Multaqat: "If he brings four corrupt individuals and they testify that the matter is as he said, the hadd is repelled from the accuser, the accused, and the witnesses." The reasoning for this is that there is a type of deficiency in the corrupt individual, even if they are among those capable of performing and bearing testimony. That is why if a judge passes a verdict, it is executed according to us. Thus, a suspicion of adultery is established by their testimony, so the hadd is repelled from them, from the accuser, and also from the accused, due to the requirement of upright character in establishment. If they were blind, slaves, or had been punished for an accusation, they are lashed for the accusation, not the one testified against, due to the lack of eligibility for testimony in them, as was said.

The apparent meaning is that the accuser is also lashed, because if the witnesses are lashed even though they only possessed the capacity for testimony and not accusation, then the lashing of the accuser is more appropriate. The apparent meaning is that the intent of "Then they did not bring four witnesses" is witnessing against the one accused of being an adulterer. The immediate meaning is that this should be by witnessing the act, but it is said in al-Fath: "If two men or one man and two women testify to the confession of the accused of adultery, the hadd is repelled from the accuser, and likewise from the three, meaning the man and the two women, because what is established by evidence is like what is established [by observation], as if we heard his confession of adultery."

You know that evidence of confession is not considered regarding the hadd of the accused, because if he was a denier, he retracted the confession by denial, which is a cause for repelling the hadd, so the evidence is void. If he confessed under its condition, it is not heard, for it is only heard along with the confession in seven situations, and this situation is not one of them.

It is required that the witnesses to adultery gather in the assembly of the judge, such that they come to him together or individually and gather there, and the judge stands among them one after another. If they do not come as such, such as coming separately or gathering outside the assembly of the judge and entering one after another, their testimony is not considered, and they are lashed with the hadd of accusation.

The apparent meaning is that it is permissible for one of the witnesses to be the husband of the accused, due to his inclusion in "four witnesses," and this was stated by Abu Hanifah and his companions. It was narrated from al-Hasan and al-Sha'bi. Malik and al-Shafi'i said: The husband performs li'an (oath of condemnation) and the three are lashed; a similar thing was narrated from Ibn 'Abbas, may God be pleased with them. The apparent meaning of the verse is that if the accuser does not bring the complete number, such as bringing two or three of them, he is lashed, and the witness is not lashed except that it is reported that he is lashed. It has been narrated that Shibl ibn Ma'bad al-Bajali and Abu Bakrah testified against al-Mughirah of adultery, and Nafi' delayed, and Ziyad paused. 'Umar, may God be pleased with them, lashed the three in the presence of the Companions, may God be pleased with them, and they did not deny it, and they are who they are. In the word "then" (thumma), there is an indication of the permissibility of delaying the bringing of the witnesses, just as in the word "not" (lam), there is an indication of the realization of the inability to bring them and its fixation.

In books other than the books of branches of our companions, it is mentioned that the accuser, if he is unable to produce witnesses at the time and requests a postponement to bring them, claiming that they are in the city, is granted a postponement for the duration of the judge’s standing from his session. If he is unable, he is lashed; he is not granted a guarantor to go and search for them, but rather he is imprisoned, and it is said: "Send to them one who will bring them." According to the Imam and Abu Yusuf, in one of his two opinions, because the cause of the obligation of the hadd appeared before the judge, he does not have to postpone the hadd due to the damage to the accused by the delay in repelling the shame from him, and the delay for the duration of his standing from the session is little and causes no harm. In the other opinion of Abu Yusuf, which is the opinion of Muhammad, he is granted a guarantor, meaning a bodily guarantor, for up to three days. Abu Bakr al-Razi used to say: "The intent of Abu Hanifah is that the judge does not compel him to give a guarantor; as for if he himself offers it, there is no harm, because the surrender of his person is incumbent upon him, and the bodily guarantor is only asked for this amount." Ibn Rustam narrated from Muhammad that if he does not have someone who will bring the witnesses, the judge sends one with him to return him to him. The command in His saying, "Then scourge them," is for the rulers and their deputies.

The apparent meaning is the obligation of lashing even if the accused does not demand it, and this was stated by Ibn Abi Layla. Abu Hanifah and his companions, al-Awza'i, and al-Shafi'i said: He is not lashed except by his demand. Malik said the same, except if the Imam heard him accuse him, he lashes him if the Imam has upright witnesses, even if the accused does not demand it. Thus said Abu Hayyan. The accused has the right to demand it even if he commanded the accuser to accuse him, because by the command, the hadd does not fall, as al-Haskafi narrated that from Sharh al-Takmilah. Then it is not hidden that the saying that the accuser is not lashed except by the demand of the accused is apparent that the hadd is a right of the servant. Many rulings testify to this, mentioned by our companions, including: that testimony does not lapse regarding what it necessitates by lapse of time; that return from confession does not prevent it; that it is established upon one with safe-conduct, and the one with safe-conduct is only taken to task for what is among the rights of servants; that its fulfillment is prioritized over the fulfillment of the hadd of adultery, theft, and drinking wine; and that the judge establishes it by his own knowledge if he knows it during the days of his judgeship. Thus, if he accuses in his presence, he lashes him.

According to us, there are rulings that testify that it is a right of God the Almighty, including: that its fulfillment is for the Imam, and he is only determined as a deputy in fulfilling the right of God the Almighty; whereas the right of the servant, its fulfillment is for him. That the accuser is not made to swear if he denies the cause, which is the accusation, and evidence is not established against him. That it does not turn into property upon falling. That it is halved by slavery like other punishments obligatory as a right of Him, the Almighty. Ibn al-Humam mentioned that there is no disagreement that it contains the right of God Almighty and the right of the servant, except that al-Shafi'i inclined toward prioritizing the right of the servant, considering his need and the sufficiency of the Truth, may He be exalted. We turned toward prioritizing the right of God the Almighty, because what the servant has of rights, his Master handles its fulfillment, so the right of the servant becomes a cause for prioritizing the right of God the Almighty, not wasting it; and the opposite is not so—meaning if the right of the servant were prioritized, it would necessitate the fulfillment of the right of God Almighty, except by making the authority of its fulfillment for him, and that is not permissible except by evidence of the Law setting him up for the substitution of the servant in fulfillment. That was not established; rather, what is established is the substitution of the Imam, until he is the one who fulfills it like other hudud which are His rights, may He be exalted.

It branches from the disagreement that one who is established to have accused, and then died before the hadd was established, the accuser is not inherited according to us, since inheritance proceeds in the rights of servants on the condition of it being property or what connects to property or turns into it, and it is inherited according to him. That the hadd does not fall according to us after its establishment unless the accused says: "He did not accuse me" or "My witnesses lied," and then it appears that the accusation did not occur as necessitating the hadd, not that it occurred then fell by his saying that. This is as if the accused confirms him. Zayn al-Din said: "If the accused forgives, the Imam does not have [the authority] to fulfill the hadd due to the lack of demand; if he returns and demands it, he fulfills it, and the forgiveness is void." According to al-Shafi'i, the forgiveness is valid, and from Abu Yusuf, there is the like of it. It was as if the intent is that if he forgives, the hadd falls and returning to demand it does not benefit, and that it is not permissible to seek compensation for it according to us, and this was stated by Malik; according to him [al-Shafi'i], it is permissible, and it is the opinion of Ahmad; and that it is subject to merging according to us, not according to him. By our opinion, Malik, al-Thawri, al-Sha'bi, al-Nakha'i, al-Zuhri, Qatadah, Tawus, Hammad, and Ahmad said, in one narration, if he lashes him with whips, then he accuses another, he completes the first, and there is nothing for the second.

Likewise, if he accuses one [person] many times or a group with one word, such as "You are adulterers," or with words such as "You, O Zayd, are an adulterer, and you, O 'Amr, are an adulterer, and you, O Bishr, are an adulterer," in one day or days, he is lashed once if a hadd did not intervene between the two accusations. Al-Shafi'i agreed with us on the one hadd for one who accuses a group with one word one time. In al-Zahiriyah: "Whoever accuses a person and is lashed, then accuses him a second time, he is not lashed." The origin in what was narrated is that when Abu Bakrah testified against al-Mughirah and was lashed when you heard, he used to say after that in gatherings: "I testify that al-Mughirah is an adulterer." 'Umar, may God be pleased with them, wanted to lash him a second time, but 'Ali, may God honor his face, prevented him, so he returned to his view, and the issue became consensus. The apparent meaning is that this is if he accuses him a second time of the first adultery, or uses a general term, to carry his generality on the first; for the one who has been lashed for accusation repeats his speech to show his truthfulness in what he was lashed for, as Bakrah did, for he did not intend that al-Mughirah is an adulterer of adultery other than the first. As for if he accuses him after the hadd of another adultery, he is lashed, as in al-Fath.

Sadr al-Islam Abu al-Yusr mentioned in his al-Mabsut the correct [view] that the dominant in this hadd is the right of the servant, as al-Shafi'i said, because most of the rulings testify to it and reason testifies to it, which is that the servant benefits from it particularly. Muhammad explicitly stated in al-Asl that the hadd of accusation is like retaliation—the right of the servant—and its delegation is to the Imam, because everyone does not know how to implement it, and because the accused perhaps wants his death due to his burning rage, so he falls into killing him. It is not inherited because it is merely a right, not property nor in its position; so it is like the option of condition (khiyar al-shart) and the right of pre-emption (shuf'ah). Contrary to retaliation, for it turns into property. Also, it is in the meaning of ownership of the substance, because whoever has retaliation owns the destruction of the substance, and ownership of destruction is ownership of the substance according to the scholars, so the retaliation becomes [a right] over him as ownership is for whoever has retaliation, so the heir owns it in the right of fulfilling retaliation. It is not valid to forgive it because it is stubbornness in it, because it is contentment with shame, and contentment with shame is shame. The investigations in that are not hidden.

Al-Shafi'i uses the verse as evidence for non-merging, for its requirement is the sequence of the ruling upon the description that suggests causality, so it repeats by its repetition. It is answered that when the consensus was upon repelling the hudud by suspicions, it restricted what the verse required of repetition at the occurrence of repetition, by the repetition that occurs after the first hadd. Rather, this is necessary, due to the clarity that those addressed with implementation in His saying: "Then scourge them" are the judges, and this address does not attach to them except after the establishment before them. So the result of the verse is the obligation of the hadd if the cause is established before them, which is the accusation, and it is more general than it being by a description of quantity—the much or the little. So if the occurrence of it from him is established many times, it is a cause for lashing eighty, not otherwise. So if that is lashed, the fulfillment occurred. Then he, may mercy be upon him, left the requirement of repetition when he accuses one once then accuses him a second time of that adultery, for he is not lashed twice according to him either. Likewise in the hadd of adultery and drinking, for if he commits adultery a thousand times or drinks as such, he is not lashed except once. So the truth is that his argument by the verse does not succeed, for it is forced into leaving the like of it from another verse, which is the verse of the hadd of adultery, and it returns to that this is a right of the son of Adam, contrary to adultery, so the foundation is establishing that it is a right of God the Almighty or a right of the servant. A precise look requires that the dominant in it is the right of God the Almighty, so contemplate.

Then, the apparent meaning is that the accusation intended in the verse does not depend on the presence of the accused and addressing him; accusing a muhsan present or absent has the mentioned ruling, as in al-Tatar Khaniyah quoting from al-Mudmarat, and it was relied upon in al-Durar. What indicates that absence is like presence is his lashing, peace be upon him, of the people of the Slander (al-Ifk), even though he did not address anyone of them regarding her whom God Almighty cleared. So what is in Hawi al-Zahidi—"He heard from many people that so-and-so commits adultery with so-and-so, so he spoke what he heard from them with another in the absence of so-and-so, the hadd of accusation is not mandatory because it is backbiting, not accusation, and accusation of adultery only happens by address, like his saying: 'O adulterer, O adulteress'"—is weak and not to be relied upon.

The apparent meaning also is that there is no difference between accusing the living and the dead. If he said: "Your father is an adulterer" or "Your mother is an adulteress," he is an accuser and is lashed upon the realization of the condition. Not if he said: "Your grandfather is an adulterer," for there is no hadd upon him, due to what is in al-Zahiriyah that he does not know which grandfather it is, and in al-Fath because among his grandfathers are those who are infidels, so he is not an accuser until he specifies a muhsan.

The one who makes the accusation of the dead demand the hadd of accusation is whoever is subject to the stain in his lineage by the accusation, which is the father even if he ascends, and the father even if he descends. They do not demand for an absent person, contrary to Ibn Abi Layla, because of the lack of despair of his demand, and because it is possible that he would confirm the accuser. The daughter's child is like the son's child in this chapter, contrary to what was narrated from Muhammad. The demand is established for the one deprived of inheritance by killing, slavery, or disbelief. Yes, the slave does not have the right to demand from his master the accusation of his mother who was free and whom he accused while she was dead. According to Zufar, if the child is a slave or an infidel, he has no right to it absolutely. It is established for the more distant one with the presence of the closer one; thus, the grandchild demands with the presence of the child, contrary to Zufar. If some of them forgive, the others have the demand, because it is repelling the shame from oneself. The mother is like the father; she demands the hadd of the accusation of her child, not the mother of the mother and her father. The son does not demand from his father and grandfather, even if he ascends, for the accusation of his mother; and this is the opinion of al-Shafi'i and Ahmad, and a narration from Malik. The famous from him is that the son has the right to demand the father for the accusation of the mother, so he implements the hadd upon him, and this is the opinion of Abu Thawr and Ibn al-Mundhir, due to the generality of the verse or its absoluteness, and because it is a hadd that is a right of God the Almighty, and kinship of birth does not prevent its implementation.

It was answered that the generality of His saying, "And do not say to them, 'Uff'," is a preventer from the child implementing the hadd upon his father, and there is no benefit in the demand other than that, and the preventer is prioritized. It was confirmed that he, may God bless him and grant him peace, said: "The parent is not retaliated for his child, nor the master for his slave," and they agreed that he is not retaliated against by killing his child. There is no doubt that wasting his crime against the person of the child necessitates wasting it in his honor by priority, even though the cause of retaliation is certain and the dominant in it is the right of the servant, contrary to the hadd of accusation in both. The brother, uncle, aunt, maternal uncle, and maternal aunt of the dead have no right in demanding the hadd of his accusation.

According to al-Shafi'i and Malik, may mercy be upon them, the demand is established for every heir, and it is a strange narration from Muhammad. The Shafi'is have three views regarding who inherits it: the first is all the heirs, the second is other than the heir by marriage, and the third is the male agnates only. The apparent meaning is that the demand of whoever has the demand for the hadd is not mandatory upon him; rather, in al-Tatar Khaniyah: "It is good that he does not raise the accuser to the judge and does not demand the hadd, and it is good from the Imam to say to the claimant: 'Turn away from it and leave it.'"

It is as if there is no difference in this between whether the claimant knows the truth of the accuser or knows his lie. What was narrated in al-Qunyah that if the accused was not chaste in secret, he has the right to demand the accuser by religious caution, is a matter that has a look that is not hidden. The apparent meaning of the verse is that there is no difference between the accuser being free or being a slave; thus, both of them are lashed eighty lashes if he accuses and the condition is realized. By this said 'Abdullah ibn Mas'ud, al-Awza'i, and the majority of the Imams, that the hadd of the slave is halved, as you knew at the beginning of the Surah. If it is intended to implement the hadd upon the accuser, he is not stripped of his clothes except in the opinion of Malik, because its cause, which is the attribution of adultery as a lie, is not conclusive because of the possibility of his being truthful while being unable to explain.

Yes, the fur and the padded garment are removed from him because they prevent the arrival of pain to him; thus it is in most books. Its requirement is that if he had a garment with lining that is not padded, it is not removed. The apparent meaning, as in al-Fath, is that if this garment was over a shirt, it is removed, because it becomes with the shirt like the padded or close to it, and prevents the arrival of pain. How not, and the striking here is lighter than the striking of adultery. This is [the case]. Abu Zur'ah and 'Abdullah ibn Muslim read "with four" (bi-arba'atin) with the tanwin, so "witnesses" (shuhada'u) is a substitute or an adjective, and it is said state or specification, and it is not [as such]; it is a fluent reading, and Ibn Jinni preferred it over the reading of the majority based on the absolute nature of their saying: "If the name of the number and the adjective are gathered, following is better than genitive."

It was challenged that that is if the adjective does not run the course of names in their engagement with factors. As for if it runs that course, its ruling in number and other than it is the end in the chapter; the most that is in it is that substitution is permissible for it after the number, considering it is not purely nominal. And "witnesses" (shuhada'u) is from that category, so "four witnesses" (arba'atu shuhada'a) by addition is more fluent than "four witnesses" (arba'atin shuhada'a) with tanwin and following. Ibn 'Atiyah said: "Sibawayh sees that the tanwin of the number and leaving its addition is only in poetry," and it is as if he wanted to criticize this reading based on this saying. The objection is that Sibawayh only sees that in the number after which is a name, like "three men," not that after which is an adjective, for it is upon the detail that was mentioned, as Abu Hayyan said.

His saying, the Exalted: "And do not accept their testimony ever," meaning for the duration of their lives, as is the apparent meaning, is a conjunction to "Scourge," included in its ruling, a completion for it, as if it was said: "Scourge them and reject their testimony," meaning combine for them lashing and rejection. The rejection of their testimony according to the Imam Abu Hanifah, may mercy be upon him, is suspended upon the fulfillment of the lashing; so if they testify before the lashing or before the completion of its fulfillment, their testimony is accepted. It is said: It is rejected if they are struck a lash. It is said: It is rejected if the most of it is implemented upon them. Among the strange is what Ibn al-Humam narrated from Malik that with his saying: "That the son has the right to demand for the hadd of his father if he accuses his mother," he said: "That if the father is lashed, the integrity of the son falls because of his direct involvement in the cause of the punishment of his father," meaning and likewise the integrity of the father, and this is apparent. His saying, the Exalted: "And those—they are the corrupt."

(4) (A statement beginning, explaining their bad state in the ruling of God the Almighty, and what is in the demonstrative noun of the meaning of distance to announce the distance of their rank in evil and corruption: meaning those are the ones against whom is judged by corruption and exit from obedience and transgression of the boundaries, complete in it as if they are the ones deserving of the application of the name of the corrupt to them, not others among the corrupt. It is known from what we pointed out that they are corrupt according to the Law that judges by the apparent, not that they are as such in the reality itself and according to God the Almighty who knows the secrets, due to the possibility of their truthfulness with their inability to bring the witnesses, as is not hidden. Some commentators explicitly stated this.)

It was permitted that the intent is to inform about their corruption according to God the Almighty and in His knowledge. Its reasoning if they were liars is apparent. As for its reasoning if they were truthful, it is that they tore the veil of the believers and caused the listener to fall into doubt without a religious benefit in that. Honor is what God the Almighty commanded to be guarded if tearing it does not relate to a benefit, so they were corrupt, not fulfilling His command, the Exalted. It is not hidden that the beauty of carrying the verse upon this meaning, and it is more appropriate to what al-Haskafi mentioned in Sharh al-Multaqa narrating from al-Najm al-Ghazzi that accusing of adultery is among the major sins, even if the accusation is truthful and he has no witnesses for it, even from the father to his child, even if he is not lashed by it, rather he is punished with ta'zir, and even if not muhsan. The condition of ihsan by the jurists is only for the obligation of the hadd, not for its being a major sin. It was narrated by al-Tabarani from Wathilah from the Prophet, may God bless him and grant him peace, that he said: "Whoever accuses a dhimmi is lashed for him on the Day of Resurrection with whips of fire."

This is a controversial issue. In Sharh Jam' al-Jawami' by the scholar al-Mahalli, he said: "Accusing the young, the owned, and the free woman who is reckless is among the minor sins, because the harm in accusing them is less than in the free woman who is a major and hidden." Ibn al-Salam said: "Accusing a muhsan in private such that no one hears it except God the Almighty and the keepers is not a major sin requiring the hadd due to the removal of the corruption." As for accusing the man of his wife if she brings a boy whom he knows is not from him, it is permissible. Likewise, slandering the narrator and the witness by adultery if he knows, rather it is mandatory.

The apparent meaning of what was narrated from Ibn al-Salam is the denial of the obligation of the hadd, not the denial of its being a major sin, for the frequency of the direction of the negation to the qualification in the like of it. Even if we say: "It is here for the negation of the qualification and the qualified," it is apparent, as al-Zarkashi said when he was truthful, not when he was a liar due to his boldness against God, may His glory be exalted, so it is a major sin even if it was in private. Perhaps what he mentioned of the obligation of slandering the witness of adultery if he knows is qualified by when he is able to bring witnesses. The better in my view, if the harm in accepting his testimony against him is slight, is not to slander by that, even if he is able to establish it. What he mentioned in slandering the narrator does not complete in what I see, upon the opinion of whoever considers slander stripped of the statement of the cause. It is not far to say that of accusation is what is infidelity, like accusing 'A'ishah, may God be pleased with her, whether it was loud or in secret, and whether it was by the particularity of who God cleared her of, or by other than it. Likewise, the accusation of the rest of the Mothers of the Believers, may God be pleased with them, and likewise the saying regarding Mary, upon her be peace. Among it is what is a major sin not infidelity, and its example is apparent. Among it is what is a minor sin, like accusing the owned and the young. Among it is what is mandatory, like accusing a witness against a Muslim of protected blood by what would be a cause for his killing if his testimony were accepted and the knowledge of its being forgery, and that was determined for the rejection of his testimony and protecting that Muslim from killing, even if his accusation with the establishment of evidence against him of adultery was mandatory for his stoning. Among it is what is a sunnah, like an accusation upon which a benefit was arranged, other than the benefit of the mandatory accusation.