[1648] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[557].
[1649] Because she has refused to fulfil the right of Allah, exalted is He, after her affirmation of it and so is compelled to fulfil it by being imprisoned as is in Ḥuqūq al-ʿibād.
[1650] Ash-Shāfiʿī gave this verdict because of his saying , “Whoever changes his dīn, kill him,” in which the word “whoever” encompasses men and women. We [Ḥanafīs] have that the Prophet forbade women to be killed. If his saying, “Whoever changes his dīn...” is general (ʿāmm) nevertheless it has to be taken as restricted to men in particular (khāṣṣ) because when a general and particular ruling occur in some ruling then the particular has to qualify the general ruling. When a Muslim man reneges on Islam, whether he is free or a slave, then Islam is offered to him and if he has some misunderstanding it is clarified for him and he is detained for three days. Then if he submits in Islam that is well and good, but otherwise he is killed.
[1651] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[558].
[1652] There is in al-Hidāyah that if one of those who have a share [in the inheritance] pardons the killing or negotiates something about dropping his share of the compensation for some other substitute, then the right of the others to retaliation is dropped but they retain their portions of the compensatory payment.
[1653] Retaliation is the right of all of the heirs.
[1654] Since retaliation is not divisible.
[1655] If retaliation is dropped the shares of the others are transformed into property and must be paid over three years.
[1656] Since he willingly dropped his right by his own action.
[1657] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[417].
[1658] bahm: a kid goat, but what is meant here are lambs and kids together.
[1659] ʿibdān by which is meant the lowest kind of people.
[1660] “You have reached this station and you are talking like this!”
[1661] Meaning that a man is not to be killed for killing his son because of his saying , “Retaliation is not taken against a father for his child.”
[1662] The calculation of inheritance, sometimes has the presence of a family member precluding others from inheriting. In this case, the existence of the father is not counted and he precludes no one else from inheriting. – Trans.
[1663] Foul, wreaking corruption and deviant.
[1664] liʿān is when a husband swears four oaths accusing his wife of adultery, laying a curse upon himself if he is a liar, and she exonerates herself by swearing four oaths that he is lying and laying a curse upon herself if she is lying. – Trans.
[1665] And in al-Hidāyah there is, “Whoever accuses a woman of sexual impropriety and she has children whose father is not known, or accuses the woman who takes part in liʿān of having [an illegitimate] child and the child is alive, or accuses her after the death of the child, then he is not to be punished for transgressing the limit because the proof of her adultery is clear, i.e., the birth of a child without a known father. So her virtue and chastity are lost and they are a precondition for being regarded as chaste woman (muḥṣan) [and punishment is only for those who slander chaste women]. If he had accused a woman who had engaged in liʿān without having given birth [to an illegitimate] child then he is punished because of the lack of evidence of adultery.”
[1666] Circumstantial clause. [He had already been punished for transgressing the limits and was thus ineligible as a witness].
[1667] In the first person singular. Because the husband is not one of the people who can testify since he has been punished for his accusation and so it is impossible to carry out liʿān because of him. Thus it reduces it to the original cause which is the accusation of sexual impropriety.
[1668] Because of the lack of being valid witnesses and the lack of chastity (iḥṣān) on her part, and the impossibility of liʿān because of her, and so the punishment is dropped.
[1669] Man or woman, and then the person accused died, in which case there is no punishment for the person who made the accusation of sexual impropriety.
[1670] And he is punished for transgressing the limits since he had declared himself a liar by this second claim of his.
[1671] Because the ascription of relationship is required because of his confirmation of it, and by his repudiation later he becomes someone who makes an accusation of his wife’s sexual impropriety and so must enter into liʿān with her.
[1672] Since after divorce she had become as a stranger to him, and if a man accuses a stranger of sexual impropriety and is incapable of proving his accusation he is to be flogged with the ḥadd punishment for slander.
[1673] And the son demands his punishment for slander since he accused a chaste Muslim woman of sexual impropriety after her death, contrary to if he had accused her and then she died in which case the punishment is dropped (al-Hidāyah).
[1674] Abū Yūsuf narrated it on p.[153].
[1675] He said in al-Mughnī, “If those things that require ḥadd punishments such as adultery, fornication, theft, accusations of sexual impropriety, and drinking alcohol are repeated before the imposition of the ḥadd punishment, there is no disagreement that one ḥadd punishment is sufficient.”
[1676] Ibn Abī Shaybah narrated the like of it in the Muṣannaf, vol.[5], p.[481].
[1677] taʿzīr: the ruler and the qāḍī may punish a person with flogging at their own discretion but it must be a lesser amount than the ḥadd punishments which are one hundred lashes for fornication, eighty for sexual slander and forty for drinking alcohol. – Trans.
[1678] Because the punishment is lightened from the point of view of the number and so is not lightened from the point of view of how it is done so that it does not lead to missing the purpose [of the punishment].
[1679] See the traditions about that from Ibn Abī Shaybah in the Muṣannaf, vol.[5], p.[491].
[1680] See the Muṣannaf of Ibn Abī Shaybah, vol.[5], p.[483].
[1681] Meaning, when a master sets free a part of his slave woman.
[1682] Because she has been set free to that measure and works to pay off the remainder of her price according to Abū Ḥanīfah. But the two of them (Imam Muḥammad and Imam Abū Yūsuf) said that she is to be set completely free. The origin is that according to him (Abū Ḥanīfah) the act of setting free may be divided into parts and be confined to what has been set free, but according to the two of them it may not be divided into parts which is also the verdict of ash-Shāfiʿī .
[1683] Because she is not regarded as muḥṣan and in this case of slander of a sexual nature the muḥṣan must be free, sane, have reached puberty, be a Muslim and abstain from acts of adultery.
[1684] See note 1677.
[1685] Ibn Abī Shaybah narrated the like of it in the Muṣannaf, vol.[5], p.[544].
[1686] Because there is no need of any other type of chiding and restraint along with that.
[1687] Meaning that if he had fornicated, stolen and drunk alcohol then all of their punishments would be executed on him unless among his punishments one was a capital punishment, meaning that if he had killed someone along with fornicating then it is sufficient to execute him.
[1688] If illegal sexual intercourse is established, but if that punishment is averted from him because of the existence of some ambiguity then he owes the dowry, and both ḥadd punishment and dowry are not incumbent for a single act of sexual intercourse.
[1689] Al-Jaṣṣāṣ said in Aḥkām al-Qur’ān, “There is no disagreement that the testimony of a husband against his wife is valid in respect of every other claim and in cases of retaliation and in every other ḥadd punishment, and so similarly it must necessarily be admissible for adultery.” Mālik and ash-Shāfiʿī said that testimony of four witnesses one of whom is the husband is not complete.
[1690] See the traditions about that in the Muṣannaf of Ibn Abī Shaybah, vol.[5], p.[526].
[1691] This was ash-Shāfiʿī’s verdict that they are given both of these as a ḥadd punishment, but according to us a virgin is not given both a flogging and exile as a ḥadd punishment. Exile and expulsion are not legislated as a ḥadd punishment but as a politic handling of the situation and as a discretionary punishment as ʿUmar said concerning the events surrounding Rabīʿah ibn Umayyah, “I will not exile another Muslim after him,” which is a general statement comprising everyone who perpetrates a wrong action necessitating a ḥadd punishment.
[1692] For example, if they were to leave Islam in the lands of the kuffār which would also be an ordeal for Islam and the Muslims.
[1693] See the traditions about that in the Muṣannaf of Ibn Abī Shaybah, vol.[5], p.[536].
[1694] Unfortunately the word for sodomite here is lūṭī, by ascription to Lūṭ which leads to the ambivalence noted later in tradition 617. – Trans.
[1695] Ash-Shāfiʿī gave this verdict, but Abū Ḥanīfah said that he is not given a ḥadd punishment but a discretionary punishment. And there is in al-Jāmiʿ aṣ-ṣaghīr that he is to placed in prison until he turns in tawbah or dies. In az-Ziyādāt there is that it is up to whatever the imam (sultan) thinks, and he may have him killed if he wishes or have him beaten and imprisoned if he wishes.
[1696] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[493].
[1697] muḥṣan denotes someone who is or has been married and has consummated the marriage. – Trans.
[1698] See some of the traditions in the Muṣannaf of Ibn Abī Shaybah, vol.[5], p.[495].
[1699] And also the verdict of Abū Yūsuf , meaning that if he ascribes sodomy to him explicitly that according to the verdict of Abū Yūsuf and Muḥammad he is given the ḥadd punishment but contrary to the verdict of Abū Ḥanīfah.
[1700] Statement, “O Lūṭī!”
[1701] Because sodomy is ascribed to the action of the people of Lūṭ but if someone says, “O Lūṭī!” it is possible that what is meant by it is, “O companion of Lūṭ!” or something other than an unsubstantiated accusation of illicit sexual intercourse, and so there is no ḥadd punishment for him.
[1702] [Since lūṭī simply denotes an ascription to Lūṭ . – Trans.] If a man says to another man, “O Lūṭī!” there is no ḥadd punishment for him because it is not an explicit accusation of illicit sexual intercourse.
[1703] Allah, exalted is He, informed that if slave women have become muḥṣan through accepting Islam or marriage they have no more than half of the ḥadd punishment of free women. Since, He laid on them a half of the ḥadd punishment due a free woman if she is muḥṣan, we know that He meant flogging since stoning can’t be half done.
[1704] Meaning, “Even if she has not married.” Ibn ʿAbbās said that a slave does not have to be given the ḥadd punishment even if she has become a Muslim unless she marries. It was for this reason that Ibn Masʿūd said, “Her being a Muslim is [equivalent] to her marriage (iḥṣān).” The difference of opinion is based on the recitation of this word [in Sūrat an-Nisā’ 26]. It is narrated of Ibn ʿAbbās that it is recited as uḥṣinna with a ḍammah (u) on the alif meaning “they are married” [the recitation of Ḥafṣ] but from Ibn Masʿūd and others that it is aḥṣanna with a fatḥah (a) meaning “they become Muslims.” It is not impossible that both meanings are intended by this word since both interpretations are possible.
[1705] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[497] in an abridged form.
[1706] Meaning, “If a man has sexual intercourse with his wife’s slave girl, what is the judgement about that?”
[1707] The name of a man. [Meaning that they are equally ḥarām. – Trans.]
[1708] Chief (ʿarīf which I take to be the correct reading in the commentary rather than ʿarīḍ) and helper on whom they rely.
[1709] Locality or tribe.
[1710] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[511].
[1711] It is said that it is also Ḥurqūs with a sīn rather than ṣād.
[1712] Meaning, “My wife...”
[1713] See the traditions about that in the Muṣannaf of Ibn Abī Shaybah, vol.[5], p.[511].
[1714] Ibn Abī Shaybah narrated the like of it in the Muṣannaf, vol.[5], p.[507].
[1715] Ibn Abī Shaybah narrated the like of it from others. See the Muṣannaf, vol.[5], p.[529].
[1716] Ibn Abī Shaybah narrated the like of it in the Muṣannaf, vol.[5], p.[508].
[1717] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[508].
[1718] That is in order to stop discussion about it and so that the man might not be upbraided about it, [which might happen] if the animal remained alive, but [sacrificing the animal and burning it] is not obligatory.
[1719] The animal is not punished, but rather slaughtered. It is burnt so that it cannot be eaten or made use of.
[1720] It is the person who raves and becomes confused in his speech, since this is the “drunk” according to common usage, and it is this definition to which most shaykhs incline.
[1721] Abū Dāwūd narrated it under “ḥadd punishments” in the chapter on “the ḥadd punishment for wine,” and the chapter on “when someone drinks wine continually.”
[1722] And this is the verdict of the dominant majority of the ʿulamā’, but some took the position that it is forty lashes. The command to lash is firmly established as that of the Prophet , for he said, “Whoever drinks wine, lash him.” At-Tirmidhī narrated it. The number of lashes is firmly established as coming from his practice as is shown by that which ʿAbd ar-Razzāq narrated from al-Ḥasan , “ʿUmar wanted to write in the written copy of the Qur’ān that the Messenger of Allah lashed eighty times for [drinking] wine.”
[1723] The measure of what can be drunk at a single go.
[1724] sakar is everything which intoxicates but what is meant here is any type of intoxicant other than wine.
[1725] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[473].
[1726] A shield made of leather without wood.
[1727] Ash-Shāfiʿī said that it is to be cut off for a quarter of a dinar of gold or that whose value is a quarter of a dinar. Mālik and Aḥmad said a quarter of a dinar or three dirhams. So we have taken the higher amount in this category in order to be scrupulously careful.
[1728] See other traditions in the Muṣannaf of Ibn Abī Shaybah, vol.[5], pp.[471]-3.
[1729] kathar and jummār [see below] are the heart of the date-palm, and in the same sense is everything which rots quickly.
[1730] Ibn Mājah narrated it as a connected marfūʿ hadith from Abū Hurayrah under “ḥadd punishments” in the chapter on “that which is not amputated neither for fruits or the spadix of palm trees.”
[1731] Theft can only be in the case where something is set aside clearly and guarded, as within a house, or some other premises. This is one of the reasons why Muslims are careful not to leave things carelessly without protection, because then one has tempted someone to steal it and shares with them in the wrong action. – Trans.
[1732] jummār is “the heart or pith ... of the of the palm-tree, that is in the summit of its head, which part is cut off, and its outer portion is stripped off from the pith within, which is a white substance, like a piece of the hump of a camel, large and soft: it is eaten with honey...” (From Lane’s Arabic-English Lexicon). – Trans.
[1733] Ash-Shāfiʿī said that if he steals a third and fourth time he is killed.
[1734] See the traditions in the Muṣannaf of Ibn Abī Shaybah, vol.[5], pp.[475]-6.
[1735] This comprises both their destruction and their consumption and is the narration of Abū Yūsuf from al-Imam al-Aʿẓam but al-Ḥasan narrated of him that he is responsible for what he has consumed but not for what he destroyed.
[1736] Because they remain his property.
[1737] He was the governor.
[1738] The upshot is prevention of his coaxing before confession, but after the confession it is recommended just as the Prophet coaxed Māʿiz, and [the author] stated plainly in ad-Durr al-mukhtār and other texts of the madhhab that this coaxing is recommended.
[1739] Meaning Abū’d-Dardā’ and Abū Masʿūd .
[1740] Meaning in the case where they had not stolen.
[1741] The origin of which is His words, exalted is He, “The reprisal against those who wage war on Allah and His Messenger, and go about the earth corrupting it, is that they should be killed or crucified, or have their alternate hands and feet cut off, or be banished from the land,” (Sūrat al-Mā’idah: 33) by which is meant, and Allah knows best, is to distribute according to conditions which are fourfold: first, is that if they murder and take property the imam has the choice of cutting off alternate hands and feet and kills them or crucifies them. If he wishes he may kill them and if he wishes he may crucify them. Muḥammad said that he may kill them or crucify them but not cut [alternate hands and feet]. Second, if they take property but do not commit murder, alternate feet and hands are cut off. Third, if they commit murder but do not steal property they may be killed as a ḥadd punishment. Fourth, if they do not commit murder nor steal property and are captured before this, they are held in custody and given a discretionary punishment, which is what is meant by nafy (banishment).
[1742] mukhtalis is someone who seizes, or carries off, a thing at a time of inadvertence. (Lane’s Arabic-English Lexicon). The point being that the judgement of theft is only with respect to things that are securely protected. (Trans). Ḥāfiẓ Riyāḍ Aḥmad al-Multānī says, “Because he is not regarded to be open in making the theft known, and ikhtilās is taking something from someone else by stealth.”
[1743] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[523].
[1744] nabbāsh: the person who robs graves and takes the shroud; nabsh: to uncover and to draw out.
[1745] And this is the verdict of Abū Yūsuf and ash-Shāfiʿī.
[1746] Ibn Abī Shaybah narrated it in the Muṣannaf, vol.[5], p.[518].
[1747] At the time of Muʿāwiyah, and there is in another narration of Ibn Abī Shaybah, “So Marwān asked those of the Companions and the fuqahā’ who attended him and their view was unanimous that he should be beaten and paraded around.