Commentary

The third injunction relating to fornication is on false accusation and the punishment prescribed for it

As explained earlier, since adultery is the most damaging and heinous of all crimes for society, as such its punishment is also most severe under Islamic law, compared to all other crimes. Hence it was the requirement of justice and fairness that the special care be attached to prove this act. Without having prescribed evidence under Islamic law, no one should dare accuse any man or woman of adultery. Therefore, the Islamic law has made it mandatory to produce four honest equitable just men as witnesses to the crime, without which the accusation of adultery is declared a big crime by itself, for which the prescribed punishment (حد) is eighty stripes. In view of this mandatory provision one would dare making the accusation of adultery only when he is absolutely sure of watching the crime happening himself. Not only that, at the same time he should be sure that along with him another three honest men have also seen the crime happening, for which they will give the evidence. Because, if there are no other witnesses, or the total number is less than four, or there is doubt if the witnesses will give the evidence, then only one man would never like to venture evidence alone and be punished with eighty stripes.

A doubt and its answer

As for the issue that when there are such strong conditions for the evidence of adultery, the criminals will have a free hand. No one will ever dare to give evidence and fulfill the conditions of Islamic law, and hence, no criminal will ever get punished. But this thinking is totally wrong, because these conditions are exclusive to the punishment prescribed as hadd for adultery, i.e. - hundred stripes or stoning. If two non-mehram man and woman are seen together in a compromising posture or indulging in shameless acts, then there is no restriction against giving evidence for it. All such matters which have nexus to adultery are also liable for punishment under Islamic penal code, for which punishment of stripes is awarded at the discretion of the judge or the ruler in accordance with the extent of the crime, but not the maximum punishment of hadd. Therefore, someone who has seen the act of adultery, but has no other witnesses need not give evidence of adultery, but can testify for having seen the accused persons in compromising position, and the judge or ruler can award the punishment after establishing the crime.

Who are muhsanat (مُحصَنَات)

The word Muhsanat is derived from the word اِحصَان . In the Islamic jurisprudence there are two types of اِحصَان . One, that has been acknowledged for the punishment of adultery. It means that the person against whom adultery is established is sane, adult, a free Muslim, and who is validly married to a Muslim woman and has also copulated with her. In that case the punishment of stoning will be awarded to him. The second type is that which has been acknowledged for the punishment of قَذَف ، that is punishment for accusation of adultery. It means that the person against whom the charge of adultery is levelled is sane, adult, a free Muslim and chaste, that is he has not been proved an adulterer before. The word مُحصَنَات is used in this sense in this verse. (Jassas)

Ruling

In the Qur’ anic verse, either because of general practice or because of the incident for which the verse was revealed, the accusation of adultery and related punishment is described in a way that the accusers are men and the accused is a chaste lady. But the injunction applies to all situations because of the common ground applicable to all persons. If a woman levels a charge of adultery against another woman or a man, or a man accuses another man, but the required legal evidence is lacking, then in either case the accuser will be liable to the punishment of eighty stripes.(Jassas Hidayah)

Ruling

The punishment of eighty stripes as hadd is exclusive to false accusation of adultery and does not apply to accusation of any other crime. However, other punishments of ta'zir can be awarded on false accusations of other crimes. Although it is not specifically mentioned in the Qur'an that this punishment is exclusive to false accusation of adultery but the condition of four witnesses is the proof of its exclusiveness, because the condition of four witnesses is only in the case of adultery. (Jassas and Hidayah)

Ruling

The punishment prescribed for qazf (false accusation of adultery) relates to the right of the person against whom the charge of adultery is levelled. As such the punishment against this crime will be executed only when the person demands the execution of the punishment, otherwise it will be annulled. This is unlike the punishment of adultery, which is purely a right of Allah. Therefore, it has to be executed, even though no person has ever demanded for it.

وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا

And do not accept his any evidence any more - 24:4.

It means that the person guilty of qazf is subject to two punishments. One is inflict at once, i.e. the eighty stripes, but there is another punishment which stays with the culprit forever. This punishment is that his evidence will not be accepted in any matter, unless he begs Allah's pardon with sincere repentance, and is also forgiven by the one whom he had accused. Until this is done, his evidence will not be acceptable in any case. This much is by consensus of Ummah. But in case of Hanafiah, even after begging the pardon, his evidence is not acceptable. Only his sin is pardoned.