Presupuesto Referencial Para La Implementación De La

122. Muhalla, vol.XI, pp.276-281. al-Rawd al Nadir, vol.IV, PjJ+93 et seq. Fath_al-Qadir, vol.IVj p.l90*e£ seq.. Mukhtasar al-Muzani, op.cit. vol.V, p.l6 8 . Mughni, vol.VIII, p.222 et seq. It is noteworthy that some of the Hanbali jurists hold the Maliki view, but Ahmad b.* Hanbal in his latest view preferred the opposite.*

123. Khirshi op.cit. vol.V, p.329* Mawwaq, his commentary on Mukhtasar Khalil, vol.VI, Cairo, 1329 A.H. p.301. 12*+. e.g. verse 235 Surah II.

63.

VI. 2 . The Categorisation of the Punishment

There are three views among the jurists about the categorization of the punishment for "qadhf". The

Hanafi and Zahiri schools hold the view that this puh-

.

ishment pertains to the public sphere or to use a modern expression, is a state punishment, as the punishment is prescribed to safeguard the public interest in terms of protecting an individuals good repute; so it belongs to the part of the criminal law, which is known in Islamic

iz6

terminology as "haqq Allah".

•

M

M

According to the Shafi1i and Hanbali schools the punishment for "qadhf" is "haqq adami". So it cannot

.

be inflicted unless the accused person or his represent­ ative demands; if he forgives his accuser there is no

127

punishment.

The MalikT jurists make a distinction between the case before it is reported to the judge and after it has been reported. Before it is reported it is "haqq

128

adami" and afterwards it is "haqq Allah".

126. Kasani, Badai1, vol.VII, pp. $6 et seq. Muhalla, vol.XI, p.281.

127. For Hanbali school see: al-Mujghni, op.cit. Vol.VIII pp.217-8. For Shafi1T school see: al-HaytamT, Tuhfat al-Muhtaj., vol.IIV, p. 120 with the commentary of Shirawani.

128. KhirshT, op.cit. vol.V, p.332 et seq. Mawwaq, op* cit. vol.VI, p.305.

6 h .

This distinction in fact is applied in all the

punishments of "hudtid", and it is recommended by several Prophetic reports to forgive the wrong-doers before

they are reported to the judge. But once the crime has 129 been reported, the punishment must be inflicted.

Nevertheless, this recommendation has nothing to do with the categorization of the punishment, so its use by

the Maliki school in this particular case cannot be accepted.

Although Hanafi scholars hold the view that this punishment is "haqq Allah" they do not consider that it

.

should be inflicted unless requested by the accused 130

person or his representative. To justify this view one should look at the Qur!anic verses and traditions concerned. Neither in the Qur!an nor in the Sunna is there any proof that the infliction of this punishment should depend on the request of the accused. It is clear that the Prophet, when he inflicted the punishment for

131 "qadhf" upon those who committed it against fAisha , did not ask her if she wanted the punishment to be in-

132

flicted upon her accusers. So this condition cannot

129. Mishkat al-Masabih? op.cit. vol.II, trad. 3567-8-9-70• Bukhari with the commentary of b. Hajar, vol.XII,

p. 72 et seq.

130. Badai* vol.VII, p.52 et seq.

131. Muhalla, op.cit. vol.XI, p.289; see also the refer­ ences mentioned in F.N. 119 ana 120.

65.

be proved and the Zahiri*s view remains the preferable one.

On the other hand the Hanbali and Shafi1! schools supported their view about the categorization of this punishment as "haqq adami" by the agreement that they

.

claimed to have existed about the condition of the

accused*s request for punishment. But as this condition is no longer accepted, their viex* should therefore not

133 be approved.

To sum up, the punishment for "qadhf1* is a punish­ ment pertaining to the public interest, "haqq Allah".

The infliction of the punishment is not dependent upon the request of the accused person but once the crime is proved either by testimony or by confession it must be punished. The principle of forgiveness before any report being made to the judge still applies to the crime of

"qadhf" but without affecting the fact that its punish-

~ 13b

ment must be "haqq Allah".

.

VI. 3. The Effect of the Criminal*s Repentances-

It has been mentioned that the Qurfanic verses con­ cerned with "qadhf" indicate "save those who afterwards repent ..." verse 5* Surah XXIV, but the effect of this repentance is controversial.

133. See the references mentioned above in F.N. 127. 13^. This means that I prefer, or rather hold, the view

6 6 .

According to the Hanafi school, this repentance does not affect the future rejection of the criminal1s

. 4. 1 3 5

testimony; his testimony cannot be accepted thereafter. The Shafi'i, Maliki, Hanbali and ZaydT schools hold a

.

contrary view, according to which the testimony of the 136

criminal can be accepted after his repentance.

The controversy about this among the jurists derives from their differences of opinion as to the interpretation of the part of the above-mentioned Qur'anic verse. Those who think that this exception "save those who afterwards

repent ..." applies merely to the sentence before it "they indeed are evil-doers" i.e. the jurists of the Hanafi school hold the view that the criminal's repent-

•

ance does not affect the rejection of his testimony. On the other hand, the jurists who think that this exception

137