Tafsir of An-Nur 24:5

And His saying, Exalted is He: "Except those who repent"—meaning those who returned from what they said and felt remorse for what they spoke—is an exception from the fāsiqīn (those who have deviated from the path of obedience), as the majority of our companions have explicitly stated. Some have said: "The one from whom the exception is made is, in reality, 'those' (i.e., ulā'ika), and that which relates to this will come, if Allah Almighty wills. The place of the exception is the accusative case (nasb) because it follows a positive (affirmative) statement.

His saying, Mighty and Majestic is He: "After that"—to show the gravity of the thing repented from—means: after they committed that great and momentous sin.

And His saying, Exalted is He: "And reform"—in the sense of reforming their deeds by seeking absolution (istiḥlāl) from those whom they accused. This is evident if the victim is still alive; but if he has died, perhaps seeking forgiveness on his behalf takes the place of seeking absolution from him, as has been said in similar cases. If they accused those who were already dead, the manifest view is that they should seek absolution from those who oppose them and demand the execution of the ḥadd (punishment) against them. It is also possible that seeking forgiveness for those they accused suffices. Combining both seeking absolution from the opposing claimants and seeking forgiveness for the accused is the better course; I have not seen anyone address this.

The opinion that the exception applies (only) to the final clause is the school of the Hanafis. According to them, the testimony of one who has been punished for qadhf (false accusation of unchastity) is not accepted, even if he repents and reforms. However, they said: "If a disbeliever is punished for qadhf and then becomes Muslim, his testimony is accepted, even if it would not have been accepted had he remained among the dhimmīs." The reason is that the text necessitates the rejection of his testimony that arises from the legal capacity established for him at the time of the accusation. Hence it was said: "And do not accept any testimony from them," rather than "do not accept their testimony"—meaning: do not accept from them any testimony of the types that were available to them at the time of the accusation. The testimony that was available to the disbeliever at the time of the accusation was testimony against his own kind, so it falls under the rejection. As for the testimony considered after Islam, it is not that testimony; therefore, it is accepted against the people of Islam and others, and thus does not fall under the rejection.

This is contrary to the case of the slave who is punished for qadhf and then manumitted; his testimony is not accepted because he had no testimony before, due to his status as a slave. Thus, the completion of his punishment by the rejection of his testimony—which he newly acquired—is required. There was a request to differentiate between this and one who commits zinā (adultery) in the Dār al-Ḥarb (territory of war) and then moves to the Dār al-Islām (territory of Islam), for he is not punished, as the legal ruling is suspended in the case of the slave until it becomes possible, while it is not suspended in the case of zinā in the Dār al-Ḥarb until it becomes possible by exiting to the Dār al-Islām. It was answered that zinā in the Dār al-Ḥarb was not originally a cause for punishment due to the lack of the Imam’s power; the Imam was never addressed with its execution, as power is a condition for obligation (taklīf). If he were to be punished after his exit without another cause, it would be without a valid legal basis, and that which is not a legal basis does not become one by itself, especially regarding a ḥadd that is intended to be averted. As for the qadhf of a slave, it is a cause for punishment at the time it occurs; however, its completion was not possible at that moment, so its completion remains pending upon the occurrence of capacity after manumission.

It is stated in al-Mabsūṭ, regarding the difference between a disbeliever who converts after punishment and a slave who is manumitted after it, that the disbeliever gains through Islam a sense of ‘adālah (probity/justice) that was not present when the punishment was carried out, and this ‘adālah was not wounded. This is contrary to the slave, who does not gain by manumission a sense of ‘adālah that did not exist before; rather, his ‘adālah has been wounded by the execution of the ḥadd. Furthermore, there is no difference in the case of the slave between being punished after being manumitted and being manumitted after being punished; in both cases, his testimony is not accepted. As for the disbeliever, if he accuses a chaste person and then becomes Muslim, he is punished, and his testimony is not accepted. The implication of the verse is the non-acceptance of any testimony from the punished person, whether recent or old, because "testimony" (shahādah) is an indefinite noun and is situated within the scope of a prohibition, thus yielding a generalization, like an indefinite noun situated within the scope of a negation. This conflicts with what was mentioned previously regarding the acceptance of the testimony of a punished disbeliever if he becomes Muslim. The scholar Ibn al-Humām answered that the obligation is according to capacity, and the rulers have been tasked with rejecting his testimony; the fulfillment of this is realized by rejecting an existing testimony. Thus, once it is rejected, the requirement is satisfied and completed. If another (testimony) occurs later, to reject it would be outside the requirement, for the legal cause has taken its effect. There is room for debate here.

The implication of the generalization also suggests the non-acceptance of the testimony of the punished person in religious affairs and others; this is the narration of al-Muntafī. In another narration, it is accepted in religious affairs, as if they considered it narration and reporting, not testimony. Many a person has his testimony rejected while his reporting is accepted. It was objected regarding the generalization that they sufficed with the testimony of punished persons in marriage. It was answered that "testimony" there means presence, and that suffices for the validity of the marriage contract. They have explicitly stated that marriage has two rulings: the ruling of formation and the ruling of public proclamation; in the second, only the testimony of those whose testimony is accepted in all other rulings is accepted, as stated in Sharḥ al-Ṭaḥāwī. The conclusion is that the verse indicates the obligation for rulers to reject the testimony of the punished person, meaning that if he testifies before them in a legal matter, they must reject his testimony; his testimony in marriage is included in this because he testifies before them if a dispute arises. Therefore, considering the presence at a marriage ceremony as sufficient for its validity does not conflict with the generalization; that is a matter beyond what we are discussing. So it is said, and let it be considered.

Al-Shāfi‘ī held that the testimony of the punished person is accepted if he repents. What is meant by his repentance is that he retracts his accusation. The disagreement is based on the famous dispute regarding the case where an exception follows several clauses conjoined by "and" (wāw): does it revert to the final clause, to all of them, or is there a distinction? The followers of al-Shāfi‘ī held that it reverts to all; the followers of Abū Ḥanīfah held that it reverts to the last clause. Qāḍī ‘Abd al-Jabbār, Abū al-Ḥusayn al-Baṣrī, and a group of the Mu‘tazilah said: If the beginning of the second clause is a diversion (iḍrāb) from the first, and nothing from the first is implied in the second, then the exception is specific to the last clause. This is because the apparent meaning is that he did not shift from the first clause, despite its independence, to another unless its purpose was fulfilled. This is divided into four categories... [The author proceeds to detail the logical categories of clause structures].

It is stated in al-Talwīḥ and elsewhere that there is no disagreement regarding the permissibility of the exception reverting to all; the disagreement is regarding what is more apparent. However, there is a view on this, for some arguments of those who say it reverts to the last clause have used evidence that indicates the permissibility of its reversion to all. Al-Qalānisī said: The accusative case of the noun following the exception in an affirmative sentence exists only by virtue of the preceding verb, with the aid of illā (except), according to the view of the senior Baṣrian grammarians. If it were said that it reverts to all, then what follows illā would be in the accusative case due to the verbs implied in every clause. This would necessitate the confluence of two agents on one object, which is not permitted; for if we assume one of them opposes the other in operation, it necessitates that the single object be simultaneously nominative and accusative, which is impossible.

... [The discussion continues with scholarly views on the reversion of the exception, mentioning Ibn Mālik, al-Mahābādhī, and the distinctions between the schools].

The truth is that they only say it reverts to the last clause if the speech is devoid of evidence pointing to its reversion to all. But if evidence is found, it is acted upon. This is as in His saying, Exalted is He, regarding the combatants: "to kill them or to crucify them..." up to His saying, Exalted is He: "Except those who repent before you overpower them." His saying, Exalted is He: "Before you overpower them," necessitates its reversion to all; for if it reverted to the last clause—namely, His saying, Exalted is He: "And for them is a great punishment"—there would be no benefit to this restriction, as it is known that repentance removes the punishment. Thus, the purpose of "before" can only be the removal of the ḥadd. It is on such a basis that the view of the Shāfi‘īs should be interpreted: that they meant the exception reverts to all when there is no evidence necessitating its reversion to the last clause alone.

Some eminent investigators mentioned that the Hanafis said the exception reverts to the last clause here because the first two clauses were expressed in the imperative/prohibitive form, addressing the Imams—and the difference between command and prohibition does not matter—whereas the last clause is a new statement (musta’nafah) in the form of information, to repel the assumption that qadhf might be a cause for punishment which is averted by doubt (and doubt exists here, for the accusation is information that may be true and might be done out of piety). The way to repel this is that they became fāsiqīn by tearing the veil of chastity without benefit, failing to provide proof; therefore, they deserve the punishment. Since it was a new statement, the exception was directed toward it.

It is reported from al-Shāfi‘ī that he made "And do not accept" a new statement, disconnected from the previous clause, and refused for it to be a completion of the ḥadd (punishment), because there is no relationship between lashing and the non-acceptance of testimony. He made the exception directed toward it by making the one who repents an exception from the pronoun in "to them," and made His saying, Exalted is He: "And those are the fāsiqīn" an insertion acting as the rationale for the non-acceptance of testimony, not disconnected from what precedes it. This is why it was permissible for it to be placed between the exception and the one from whom the exception is made, and the exception has no relation to it.

... [The discussion continues regarding the rationale of the ruling and the interpretation of the verse structure].

And the manifest view is that it is a supplementary statement (tadhīl) to clarify the evil state of the accusers in the sight of Allah Almighty. In that case, the reversion of the exception to it is apparent. It cannot be said that this negates the benefit, because it is known in religious law that repentance removes the status of fisq (deviation) from other than this verse; for we say: There is no doubt that knowledge of this is through transmission, and the indicator of it has been mentioned; the fact that another verse indicates it does not harm, for it is certain that the way of the Quran is to repeat indicators, especially if emphasis is required.

... [The discussion concludes with a summary of the conflicting views among the scholars: the Hanafi view (no acceptance of testimony even after repentance) vs. the Shāfi‘ī view (acceptance after repentance), noting that the majority of jurists follow the latter, and rejecting claims of absolute consensus].