STONING UNDER THE SYARIAH PENAL CODE: ANALYSIS & REVIEW – IRANIAN AND NIGERIAN PENAL CODE: PART 4 & Final

5.                  Stoning under the Bible

                  It is interesting to note that while the punishment for stoning is not         found in the Quran, it is, however found in the Bible.

                  The Bible states the following explicitly:

                  (a) “But if the thing is true, that the tokens of virginity were not found in                       the young woman, then they shall bring out the young woman to the                               door of her father's house, and the men of her city shall stone       her to                         death with stones, because she has wrought folly in Israel by playing                  the harlot in her father's house; so you shall purge the evil from the                                   midst of you”. [Deut 22:20 - 21].

                  (b)  "If a man is found lying with the wife of another man, both of them                          shall   die, the man who lay with the woman, and the woman; so you                                shall   purge the evil from Israel” [Deut 22:22]

                  (c) "If there is a betrothed virgin, and a man meets her in the city and                           lies with her, then you shall bring them both out to the gate of that                               city,and you shall stone them to death with stones, the young                                         woman because she did not cry for help though she was in the                              city, and the man because he violated his neighbor's wife; so you                                   shall purge the evil from the midst of you. [Deut 22:23 - 24]

                  (d) "If a man commits adultery with the wife of his neighbor, both the                             adulterer and the adulteress shall be put to death. [Lev 20:10]

                  Quite apart from the punishment of stoning for adultery, the Bible also prescribes the rajm punishment for those guilty of preaching a different religion such as the following:

                  "If your brother, the son of your mother, or your son, or your daughter, or the wife of your bosom, or your friend who is as your own soul, entices you secretly, saying, `Let us go and serve other gods,' which neither you nor your fathers have known, some of the gods of the peoples that are round about you, whether near you or far off from you, from the one end of the earth to the other, you shall not yield to him or listen to him, nor shall your eye pity him, nor shall you spare him, nor shall you conceal him; but you shall kill him; your hand shall be first against him to put him to death, and afterwards the hand of all the people. You shall stone him to death with stones, because he sought to draw you away from the LORD your God, who brought you out of the land of Egypt, out of the house of bondage. And all Israel shall hear, and fear, and never again do any such wickedness as this among you. (Bible, King James version: Deuteronomy 13:6-11)

                  In the Bible, the rajm punishment is prescribed for a variety of ‘biblical offences’ such as the offences of practicing a different religion, for blasphemy, for cursing God and the King, for being a medium or a wizard, for breaking the Sabbath, for being a stubborn and rebellious son, and for stealing, to name a few[1].  Evidence from the Bible therefore clearly demonstrates that the Bible explicitly enjoins rajm as a mode of punishment.

                  Ironically, it appears that the Shariah penalty of stoning for adultery has support from the Bible and not the Quran. I humbly submit that this point is critical for consideration by current day Islamic thinkers for the following reasons:

a)         This is because the Quran unambiguously states the following:

                   “The adulterer and the adulteress, scourge ye each one of them (with)  a          hundred stripes. And let not pity for the twain withhold you from  obedience to Allah, if ye believe in Allah and the Last Day. And let a  party of believers witness their punishment”. [an-Nur 24:2]

                  Indeed the Quran prescribes a punishment for adultery. But the   punishment meted out is a scourge of 100 lashes. The Quran remains          silent on the mode and intensity and leaves it to the good judgement of             the future generations of mankind.

      b)        There does not appear to be any evidence that the fukaha has considered                      the possibility that the narrators or the jurists or the ahlul fikh have not been influenced       by the preIslamic mode of thinking, namely biblical  influences. This is equally important when one considers that the stoning penalty is derived from hadiths reports and alleged sunnah of  the Prophet, both of which is a product of scholarly verification and  collection. The question would then arise: In a matter of such doubt  where one is faced with the clear verses of the Quran and the scholarly claim that such and such a hadith or sunnah existed, which one should  the Muslim “hear and obey” (samikna wa-atakna[2])? This is a critical  question for a Muslim who truly fears and believes in the hereafter as opposed to what I humbly term a ‘habitual religionist[3]’.

      (c)       It may be worthy to examine the message contained in verses such as the following in the Quran when one considers the likeness of the sunnah put forward by jurists as authentic supporting the rajm punishment with the numerous and unambiguous verses in the Bible on the same subject:

                  “Never will the Jews or the Christians be satisfied with thee unless thou follow their form of religion. Say: "The Guidance of God,-that is the (only) Guidance." Wert thou to follow their desires after the knowledge which hath reached thee, then wouldst thou find neither Protector nor helper against God”[4].

6.                  Conclusion

            Based on the foregoing research and analysis, it is impossible to support the stoning as a mode of punishment prescribed by Allah swt if we refer primarily to the Quran. However, it is clear that the Bible strongly enjoins such a mode and it appears that jurists are of the view that there are reported hadiths which enjoins the same. Despite this apparent ‘unanimous’ agreement between the jurists that the Shariah prescribes the stoning penalty, they differ as to its application and as to whether the offender is a male or female. The principles they employ are also not consistent.

            For example, in the execution of the death penalty (which rajm is) for apostasy, Imam Malik, Imam Shafii and Imam Ahmad hold the view that death punishment for apostasy is common for both males and females. Imam Hanifah, a woman apostate shall not be punished but imprisoned till she repents or dies and he apparently based his view on a hadith where the Prophet (pbuh) reportedly prohibited the killing on no-Muslim women in battlefield. If the rationale of the hadith is the prohibition of the death sentence for women, then it is illogical that the Prophet would have enjoined the rajm punishment for women. The argument could be extended further to state that it is equally unjust to have different sentences for the same offence by different sexes. Therefore, this is the kind of problems the ahlul-fikh run into when a fikhi conclusion is arrived at which is in clear conflict with the Quran. I humbly submit that when the Quran is clear, there should be no room for exegetical exercises, however clever it may sound.

I submit that the other important fact that lends to the continued belief in an alleged “Islamic principle” when it is unsupported by the Quran or authentic sunnah is the mindset of Muslims over the years – the views of the schools of thought cannot be challenged legitimately and any criticism of the jurists analysis of reported hadiths is misconstrued as a criticism against the Prophet (pbuh). Otherwise, how can one explain the following?

(a)       despite the scholarly controversy surrounding the rajm (and the unambiguous verse Q24:2, countries like Nigeria and Iran still incorporate the rajm punishment into law?

(b)       Even the offences for which rajm is made into Law in these countries differ. For example, in Nigeria, the punishment for sodomy is rajm but in Iran, though the punishment is killing the offender, the mode is determined by the Judge. For lesbianism, it is 50 lashes in Nigeria and 100 lashes in Iran. Both are called “Shariah Law”.

(c)       The insistence that rajm is ordained by Allah when it is not found in the Quran may connote a careless God, which I as a Muslim am unprepared to accept. Allah swt the All-Knowing has ordained ‘without doubt” all matters pertaining to life especially when He has decreed that “no life shall be taken without just cause”.

            It is respectfully and humbly submitted that where there is a conflict between the clear injunctions of the Quran and scholarly views, it is “safer” to choose the Quran in line with the following warning from Allah:

            “What is the matter with you? How judge ye? (Quran 68:36)

            Or have ye a book through which ye learn (Quran 68:37)

            That ye shall have, through it whatever ye choose? (Quran 68:38)   

            Or have ye Covenants with Us to oath, reaching to the Day of Judgment,

            (providing) that ye shall have whatever ye shall demand? (Quran 68:39) 

            Ask thou of them, which of them will stand surety for that! (Quran 68:40)”

            The believer has to firstly, judge by the Al Furqan that Allah swt has given us. Which one of the learned human beings can stand surety for what they say other than Allah swt alone and His Prophet? In the event that my understanding is wrong, may Allah swt forgive me and guide me with His mercy knowing that it is only my passion for Him that motivates me to wake up every morning into this illusory world.

            Wassalam.

Noah said: "O my Lord! I do seek refuge with Thee, lest I ask Thee for that

of which I have no knowledge. And unless thou forgive me and have Mercy on me, I

should indeed be lost!" (Quran: 11.47)

BIBLIOGRAPHY

(a)              Abdul Kadir Qudah Shaheed, Criminal Law of Islam, vol. I, II & III, 1^st Edition, Karachi, International Islamic Publishers (Pvt) Limited, 1987.

(b)              Abdur Rahman I. Doi, Shariah: The Islamic Law, London, Ta-ha Publishers Ltd., 1984.

(c)              Prof Dr Anwarullah, The Criminal Law of Islam, Kuala Lumpur, A.S. Noordeen, 1997

(d)              Shariah Penal Code Law, Zamfara State of Nigeria

(e)              Nyazee, Imran Ahsan Khan, General Principals of Criminal Law (Islamic and Western), Advanced Legal Studies Institute, 2000.

(f)               Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, 2^nd revised Edition, Kuala Lumpur: Ilmiah Publishres, 2000

(g)              Terjemahan Hadis: Shahih Bukhari Jilid I, II, III & IV, Singapore, Darel Fajr Publishing House, 2002.

(h)               John Burton, The Sources of Islamic Law: Islamic Theories of Abrogation, Edinburgh: Edinburgh University Press, 1990

(i)                Abdullah Yusuf Ali, The Meaning of the Holy Quran, Translation and Commentary, Maryland, USA: Amana Corporation, 1991

(j)                Muhammad Asad, The Message of the Quran, Translation and Explanation, Gibraltar, Dar Al-Andalus, 1980

(k)              Ahmed Ali, Al-Quran: A Contemporary Translation, Princeton, New Jersey, Princeton University Press, 1988.

(l)                Hanna E. Kassis, A Concordance of the Quran, Los Angeles, University of California Press, 1983

(m)            Ahmad Sonhadji Mohamad, Tafsir Al-Quran (Tafsir Al-Quran Di Radio) Juz 1, Kuala Lumpur, Pustaka Al-Mizan, 1991

(n)              Bible,  King James version.

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[1] Holy Bible, King James Version Deuteronomy 17:1-7, Leviticus 24:10-16, 1 Kings 21:1-16, Leviticus 20:27, Numbers 15:32-36, Deuteronomy 21:18-21, Joshua 7:20-26.

[2] Q24:51  “The answer of the Believers, when summoned to God and His Apostle, in

order that He may judge between them, is no other than this: they say, "We hear and

we obey": it is such as these that will attain felicity”.

[3] Q2.170  “When it is said to them: "Follow what God hath revealed:" They say: "Nay!

we shall follow the ways of our fathers." What! even though their fathers Were void

of wisdom and guidance?”

[4] Q2:120

STONING UNDER THE SYARIAH PENAL CODE: ANALYSIS & REVIEW – IRANIAN AND NIGERIAN PENAL CODE: PART 3

4. Examination of the Shariah Position in Iranian and Nigerian Penal Code

(a) Zamfara State of Nigeria Shariah Penal Code, January 000 (hereinafter referred to as the “Nigerian Penal Code”)


According to the Nigerian Penal Code, the punishment of stoning to death is provided for married persons for the offences of zina (section 127), rape (section 129), sodomy (section 131), and incest (section 133). However, for the offence of lesbianism (section 135), the punishment provided is “caning which may extend to fifty lashes and in addition be sentenced to a term of imprisonment which may extend to six months”.

(b) Iranian Penal Code


The Islamic Penal Law was approved by the Islamic Consultancy Parliament on 30 July 1991 and ratified by the High Expediency Council on 28 November 1991.The Book Five of the Penal Code – Ta’azirat – has been ratified in May 22 of 1996.


According to Article 83 of the Code, adultery in the following cases shall be punishable by stoning:

(1) Adultery by a married man who is wedded to a permanent wife with whom he has had intercourse and may have intercourse when he so desires;

(2) Adultery of a married woman with an adult man provided the woman is permanently married and has had intercourse with her husband and is able to do so again.

According to Article 84, old married adulterers and adulteresses shall be flogged before being stoned.

However, Article 86 provides exception to the stoning punishment as follows: “Adultery of a permanently married man or a permanently married woman who does not have access to his or her spouse, due to travel, incarceration or similar impediments, shall not require stoning”.

Artciles 93 and articles 102 provide for situations and method of stoning.

Article 93 provides that “If an ailing woman or a woman in menstruation has been condemned to death or stoning, the punishment shall be carried out. If, however, she is condemned to flogging, the punishment shall be delayed until she is recovered or her menstruation period is over”.

Article 102 provides that “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.”.

It is noteworthy that unlike the Kelantan Hudud Bill where pregnancy may be prima facie evidence of zina, the Iranian Penal Code clearly stipulates that the pregnancy of a woman shall not raise the presumption of zina.

Peace.

Next: Stoning in the Bible and Conclusion - Part 4 & Final

STONING UNDER THE SYARIAH PENAL CODE: ANALYSIS & REVIEW – IRANIAN AND NIGERIAN PENAL CODE: PART 2

            3.2 Stoning in the Quran

                  Abdul Kadir Oudah Shaheed rightly observes that ‘no verse exists in the Holy Quran enjoining stoning to death or rajm”[1].  However, there are instances recorded in the Quran where some people resorted to stoning other people. The following are some of the instances that can be obtained from the Quran:

                  (a) An instances in the Quran recounted by Sir Muhammad Zafrulla Khan is that of the opponents of Noah and Abraham’s father; “For instance, the opponents of Noah said to him: ‘If you do not desist you shall certainly be stoned to death’ (26: 117). Abraham's father said to him: ‘Is it that thou art turning away from my gods, Abraham? If thou desist not, I shall surely cause thee to be stoned to death’ (19:47)[2]

                  (b) As the following verses of the Quran will testify, even the Apostles and prophets were not spared the threat of being stoned for none other than reason that these apostles choose to believe in a different faith than their aggressors:

                        “They said: "O Shu'aib! much of what thou sayest we do not understand! In fact among us we see that thou hast no strength! Were it not for thy family, we should certainly have stoned thee! for thou hast among us no great position!" (Quran 11:91)

                  “The (people) said: "for us, we augur an evil omen from you: if ye desist not, we will certainly stone you. And a grievous punishment indeed will be inflicted on you by us." (Quran: 36:18)

                  "For if they should come upon you, they would stone you or force you to

                  return to their cult, and in that case ye would never attain prosperity." (Quran: 18:20)

                  (The father) replied: "Dost thou hate my gods, O Abraham? If thou forbear not, I will indeed stone thee: Now get away from me for a good long while!" (Quran:19.046  )

                  "And our duty is only to proclaim the clear Message." (Quran36:17  )

                  “The (people) said: "for us, we augur an evil omen from you: if ye desist not, we will certainly stone you. And a grievous punishment indeed will be inflicted on you by us." (Quran 36:18)

      The above verses and a complete analysis of the Quran would demonstrate that  in all the instances of stoning done by humans, it is done by pagans, and disbelievers against the Prophets and the believers.  In the entire Quran, there is not a single verse that shows a Mukmin stoning another person.

      The Qur`an divides the cases of accusations of zina` against women into two categories: accusation by the husband and accusation by person(s) other than the husband. In case of the accusation by the husband the Qur`an says: 

      “As for those who accuse their wives but have no witnesses except themselves, they (must) bear witness four times (with an oath) by God that they are surely telling the truth and the fifth (oath) that they solemnly invoke the curse of God on themselves if they tell a lie. But the punishment will be averted from her if she bears witness four times (with an oath) by God that (her husband) is surely telling a lie. And the fifth (oath) that she solemnly invokes the wrath of God on herself if he is telling the truth (24:6-9). 

      It is humbly submitted that looking at the context of the above verses from Q24:1, it would clearly emerge that the punishment referred to in Q24:8 must be the punishment clearly stated in Q24:2 that is, the punishment of 100 lashes. It is to be noted that the woman who may avert the punishment in Q24:8 is a married woman.  This clear statement of the penalty for adultery by Allah swt is consistent with His declaration in Q24:1 and Q24:34 that “we have sent down clear signs”.  Hence, it is difficult to support the view that Allah swt has ordained the rajm penalty as found in the Bible.

      Further, going by the rules of al-usul al-fikh or Islamic jurisprudence,  “as sunnah is second source of the Shariah next to the Quran, the mujtahid is bound to observe an order of priority between the Quran and Sunnah. Hence in his search for a problem, the jurist must resort to the Sunnah only when he fails to find any guidance in the Quran. Should there be a clear text in the Quran, it must be followed and be given priority over the ruling of the Sunnah, which may happen to be in conflict with the Quran…..”[3]. 

      Another instance of where the Quran is “guidance sure, without doubt, to those who fear God[4]” and that the Quran is the ahsanal tafseer [5] is provided by the opportunity of reading together Q4:25 and Q24:2 in this controversy concerning the rajm punishment. In 4:25 the Qur`an prescribes that a slave woman guilty of indecency (fahishah) is to receive half the punishment that the free women should receive for that crime. It must necessarily follow that the punishment prescribed for the free women must be that which can be halved for the slave women, whether married or unmarried as the case may be. Hence, it must be the 100 lashes, whether married or unmarried as it is not possible to half the punishment of stoning to death for the married slave women if indeed the punishment for the married free woman is rajm.

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[1] Abdul Qadir Qudah, Criminal Law of Islam Vol. III, International Islamic Publishers (Pvt) Ltd, Karachi, 1990, page 36

[2] Sir Muhammad Zafrulla Khan,  Punishment of Apostacy in Islam, London: London Mosque, www.alislam.org/books

[3] Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, 2^nd Revised Edition, Kuala Lumpur: Ilmiah Publishers, 2000, p. 58 to 59

[4] Q2:1

[5] Q25:33  “And no question do they bring to thee but We reveal to thee the truth and the

best explanation (thereof).” See also Q10:37 and Q65:11

STONING UNDER THE SYARIAH PENAL CODE: ANALYSIS & REVIEW – IRANIAN AND NIGERIAN PENAL CODE: PART 1

Recently, the issue of stoning to death (rajm) as a valid punishment in Islam came up in my discussions with some friends. I thought I would share a paper I presented as part of my course requirement in Islamic Criminal Law when I did my masters in UIAM. Please read it critically.

1.                  Introduction

The punishment of stoning to death (rajm) has a long tradition in Islam. After Muhammad's death, the first generation of Muslim legal scholars included adultery, or zina, as one of the six major offenses (hudud) in Islamic law for which the penalty is fixed by God in the Quran and whose application is the right of God (haqq Allah). The Iranian Penal Code and the Nigerian Shariah Penal Code, for example, has included this method of punishment.

This is an important area for analysis because of two main reasons:

(a)              Allah has clearly ordained in the Quran that a Muslim shall only judge according to what Allah has revealed and on nothing else which may be contradictory to the clear injunctions of Allah’s commandments therein[1].

            “Whoever does not judge by what Allah revealed, those are the zalimoon/oppressors”.

(b)              The punishment of rajm is of a “drastic nature” of finality in the sense that it terminates the life of the offender that one has to be absolutely certain that this is indeed the punishment prescribed by Allah. This is because a Muslim is clearly forbidden to terminate anyone’s life except with ‘just cause’.

 “Nor take life - which God has made sacred - except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand qisas or to forgive): but let him nor exceed bounds in the matter of taking life; for he is helped (by the Law)[2].”

This study hopes to examine the basis of the stoning punishment in the Shariah, the Quran and the Sunnah. It also hopes to examine some of the provisions of the Iranian and Nigerian Penal Code relating to the offences for which stoning is prescribed.

2.                  Punishment of Stoning  under the Shariah

           

Adultery committed by a married man or woman is punishable by rajm, which mean execution by stoning.

Abdul Qadir Oudah Shaheed[3] writes that “But all the sects of the Ummah with the exception of the Kharijees are agreed on rajm, inasmuch as the Prophet (SAW) enjoined rajm. After him, there was consensus among the companions on this punishment. An oft-quoted tradition in this context is as follows: ‘Killing of a Muslim is lawful for one of three acts: infidelity after embracing Islam, adultery after marriage and murder of anyone without any reason’.

Abdul Kadir Qudah Shaheed further records a tradition where the Holy Prophet allegedly ordered the adulterer and adulteress named Ma’iz and Chamida when the woman was guilty of adultery with her servant to be stoned to death. However, he had failed to go further to analyze or at least rationalize how this could have been so in the light of Q24:2 and Q4:25 and he simply concludes that  “Thus both the edict and practice of the Holy Prophet (saw) bear testimony to the punishment of rajm”. If both the woman and her servant had been stoned to death, does this mean that the Prophet (pbuh) had departed (may Allah forbid) from the clear injunction of Q4:25?

It would appear odd that the Prophet (Allah forbid) would have pronounced the same punishment for the woman and for her servant in the light of Q4:25.  It is clear from the Quran that even the Prophet does not have the power nor did the Prophet ever depart from the letter of the Quran[4].  This is yet another evidence of the divinity of the Quran free from human corruption.

Under the Shariah, distinction is made between married and unmarried offenders in determining the nature of the punishment for adultery. Generally, for unmarried offenders, the Quranic punishment of 100 lashes while for married offenders, the punishment of rajm sourced from the alleged sunnah of the Prophet (pbuh) is meted out (This is discussed further under section 3 of this study).

All the jurists agree that sodomy (Liwat) is a sexual offence but differs in their punishment. According to Imam Abu Hanifa, the act of sodomy does not amount to adultery and therefore there is not punishment by hudud to be given to the offender except ta’zeer. Imam Malik’s view is that the hudud punishment is applicable whether married or not, in other words, stoning to death[5].

Another shariah offence for which stoning is prescribed by some jurists is the offence of bestiality. According to Imams Malik, Abu Hanifa and Zahir, only Ta’azir shall be applied to the individual guilty of bestiality and not the hudud punishment. However, Imams Hanbal and Shafii hold that hudud punishment of stoning to death should be applied on the individual and the animal which was the subject of bestiality should also be killed. The more preferable view is that held by other jurists that only an individual can be punished and not an animal since it does not have a guilty mind[6].

3.                  Stoning under the Quran and Sunnah

            In this section, I propose to consider the penalty of stoning in the     Sunnah and then proceed to consider the same in the Quran.

            3.1 Stoning in the Sunnah

                  The basis for the punishment of stoning can be found in some of the                              reported hadiths as follows:  

                 

                  (a) 'Ubada b. as-Samit reported: "Allah's Messenger (may peace be upon him) as saying: Receive (teaching) from me, receive (teaching) from me. Allah has ordained a way for those (women). When an unmarried male commits adultery with an unmarried female (they should receive) one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death.  (Translation of Sahih Muslim, Book 17, The Book Pertaining to Punishments Prescribed by Islam (Kitab Al-Hudud), Number 4191)”

                        In the above hadiths, for the married adulterer and adulterers, they shall receive both the Quranic punishment of 100 lashes and the ‘sunnah’ punishment of stoning to death.

                  (b)  Jabir b. Samura reported: "As he was being brought to Allah's Apostle (may peace be upon him) I saw Ma'iz b. Malik-a short-statured person with strong sinews, having no cloak around him. He bore witness against his own self four times that he had committed adultery, whereupon Allah's Messenger (may peace be upon him) said: Perhaps (you kissed her or embraced her). He said: No. by God, one deviating (from the path of virtue) has committed adultery. He then got him stoned (to death), and then delivered the address: Behold, as we set out for Jihad in the cause of Allah, one of you lagged behind and shrieked like the bleating of a male goat, and gave a small quantity of milk. By Allah, in case I get hold of him, I shall certainly punish him.   (Translation of Sahih Muslim, Book 17, The Book Pertaining to Punishments Prescribed by Islam (Kitab Al-Hudud), Number 4198)"

                  (c)  Narrated Abu Huraira and Zaid bin Khalid: "Two men had a dispute in the presence of Allah's Apostle. One of them said, "Judge us according to Allah's Laws." The other who was more wise said, "Yes, Allah's Apostle, judge us according to Allah's Laws and allow me to speak (first)" The Prophet said to him, 'Speak " He said, "My son was a laborer for this man, and he committed illegal sexual intercourse with his wife, and the people told me that my son should be stoned to death, but I have given one-hundred sheep and a slave girl as a ransom (expiation) for my son's sin. Then I asked the religious learned people (about It), and they told me that my son should he flogged one-hundred stripes and should be exiled for one year, and only the wife of this man should be stoned to death " Allah's Apostle said, "By Him in Whose Hand my soul is, I will judge you according to Allah's Laws: O man, as for your sheep and slave girl, they are to be returned to you." Then the Prophet had the man's son flogged one hundred stripes and exiled for one year, and ordered Unais Al-Aslami to go to the wife of the other man, and if she confessed, stone her to death. She confessed and was stoned to death.  (Translation of Sahih Bukhari, Punishment of Disbelievers at War with Allah and His Apostle, Volume 8, Book 82, Number 826)"

                  (d) Narrated Ash-Shaibani: "I asked 'Abdullah bin Abi 'Aufa about the Rajam (stoning somebody to death for committing illegal sexual intercourse). He replied, 'The Prophet carried out the penalty of Rajam (stoning to death),' I asked, 'Was that before or after the revelation of Surat-an-Nur? (Noble Verse 24:2)' He replied, 'I do not know.'  (Translation of Sahih Bukhari, Punishment of Disbelievers at War with Allah and His Apostle, Volume 8, Book 82, Number 824)"

                        This hadith is interesting because if one is uncertain whether the stoning punishment was carried out before or after Q24:2, then, arguably, it would suffice to apply the Quranic punishment for all cases of adultery, whether married or unmarried.

                  (e) “Umar said:  I am afraid that after a long time has passed, people may say: ‘We do not find the verses of rajm (stoning to death) in the Book of Allah’. And consequently they may go astray by leaving out the obligation that Allah has revealed. Lo! I confirm that the penalty of rajm be inflicted on him who commits illegal sexual intercourse if he is already married and the crime is proved by witnesses or pregnancy or confession” (Al-Bukhari, Kitab Al-Hudud)

                        How was it possible that something extremely precious such as Allah’s verses ever got lost? Did Allah not promise that “We have, without doubt, sent down the Message; and We will assuredly guard it”?[7]

                        Professor Mohammad Hashim Kamali[8] opinies that the above hadith provides an example of naskh al-tilawah ie that the passage prescribing the rajm punishment was part of the Quran but does not appear in the mushaf.  This hadith therefore causes a severe problem because it is part of the controversial al-naskh al-mansukh doctrine. However, it will not be possible to discuss the doctrine and its problems in this paper.

                        It is important that I disclose that I have not personally verified the authenticity or otherwise of the hadiths that I have quoted above and I have merely reproduced them from the textbooks and sources that are listed in the bibliography of this research. Thus I am unqualified in this research from making any comments on the authenticity or otherwise of these hadiths and hence I refrain from so doing.

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[1] Quran 5:45; see also Q4:105,  Q5:47 to 50;

[2] Quran 17:33

[3] Abdul Qadir Qudah, Criminal Law of Islam Vol. III, International Islamic Publishers (Pvt) Ltd, Karachi, 1990, page 36 -37

[4] See Quran 69:43 to 49

[5] Abdur Rahman I.Doi, Shariah The Islamic Law, Ta-ha Publishers Ltd, London, 1984 at page242 to 243

[6] Abdur Rahman I.Doi, Shariah The Islamic Law, Ta-ha Publishers Ltd, London, 1984 at page 243

[7] Q15:9

[8] Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence, 2^nd revised Edition, Kuala Lumpur: Ilmiah Publishres, 2000 at page 157

NEXT:      PART 2:     3.2 Stoning in the Quran.

PEACE !