"And whoever dies in a hudud punishment, he was killed lawfully, and no pit is dug for the one stoned for zina"
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The Shaykh : He said "And whoever dies in a hudud punishment, he was killed lawfully". The "man" is conditional, and the answer to the condition is the sentence from his saying "he was killed lawfully".
This phrase is an athari expression, meaning it was said in a previous era and people followed the predecessors in it. The meaning of "he was killed lawfully" is that he was killed with a valid right. And whoever is killed with a valid right is not liable for compensation. We have previously mentioned a useful rule in the chapter of criminal offenses in this matter, which is that what results from what is permitted is not liable for compensation. But note, he said "And whoever dies in a hudud punishment". The "fi" (in) indicates the time or place, so it must be within the hudud punishment itself. If a person exceeds the hudud in quantity or manner, he becomes liable for compensation. For example, if he is flogged with a strong, hard, new whip but does not exceed the number of lashes, and the flogged person dies, is he liable? Yes, because it is not within the framework of the hudud, but rather an excess. Likewise, if he flogs him one hundred lashes and a hundredth...
The questioner : He is liable.
The Shaykh : He is liable because he added. Likewise, if he exceeds in the intensity of the beating until he dies, he is liable because he exceeded what was permitted, and what results from what is not permitted is liable for compensation. Now, if someone says, "If he flogged him one hundred and one, he did not die from the one, he died from all of them, undoubtedly. Do we distribute the blood money over the number of lashes, or do we say he is liable for the full amount?" We say he is liable for the full amount because he transgressed, and it is possible that without that one lash, he would not have died. So we say he is liable if he increases in the number, in the quantity, or in the manner. Now, if he strikes him in a vital spot, is he liable? He is liable because it is not within the hudud, but rather an excess over it. Likewise, if he strikes him in the face, or the head, or the private parts, from the places where striking is not permissible.
The questioner : The strength of the beating varies; is it defined?
The Shaykh : Yes, it cannot be regulated in reality; regulating it is not possible. But it is according to what the flogged person can bear. For this reason, if it is assumed that he cannot bear it due to the weakness of his body or an illness that is not expected to end, he is flogged with a suitable whip, until we might say, "Flog him with a bundle of palm fronds," meaning you gather the fronds according to the number of lashes and flog him with them. So the flogging is according to the tolerance of the flogged person, and it cannot be regulated because this is a matter of quality, and quality is difficult to regulate because it is not seen.
Then he said "And no pit is dug for the one stoned for zina", meaning no pit is dug for the one who is stoned for zina. Where is the substitute for the subject? The prepositional phrase, because we do not have an object that substitutes for the subject. For this reason, Ibn Malik said:
"And a substitute from a circumstantial phrase or from a source *** Or a preposition with a substitute is proper
And some of these do not substitute if found *** in the wording, an object, and it may be said: "
His saying "And no pit is dug for the one stoned for zina" is the famous view of the Hanbali school that it is not prescribed to dig a pit for him. This issue is disputed among the scholars according to the difference in the narrations. The narrations reported from the Prophet (peace and blessings be upon him) are different. Some indicate clearly that no pit is dug for the one stoned, where the negation of digging is mentioned. Some indicate that a pit is dug for him. And some are ambiguous, where neither this nor that is mentioned. Thus, the scholars differed. Those who said no pit is dug said so because the Prophet (peace and blessings be upon him) did not dig a pit for the woman whose husband's servant committed zina with her, but rather he said to AnisSahih al-Bukhari 2314, 2315 and did not order him to dig a pit for her. The lack of command at a time of need indicates the lack of obligation, because the need would be a prompt to mention it if it were obligatory. He did not say, "Go to her, and if she confesses, dig a pit for her and stone her." And because he (peace and blessings be upon him) did not dig a pit for the two Jews who committed zina, and reference to them has passed, where a Jewish man committed zina with a Jewish woman, and they ascended to the Prophet (peace and blessings be upon him) to judge between them. The hudud was stoning in the Torah, but when zina became prevalent among their nobles, they said, "We cannot eliminate our nobles. So what shall we do? We will blacken their faces and parade them among the tribes, or something similar that leads to disgrace and shame." So when the Prophet (peace and blessings be upon him) came to Medina and zina occurred from a man and a woman among them, they said, "Go to this man, meaning the Prophet (peace and blessings be upon him), perhaps you will find something with him." The Prophet (peace and blessings be upon him) ordered their stoning and said, "This is the ruling of the Torah." They said, "We do not find that in the Torah." He said, "Bring the Torah and recite it if you are truthful." They brought it, and indeed, stoning was clearly present. So he ordered it, and they were stoned. He said "And I saw the man shielding her from the stones, leaning over her". This is evidence that no pit was dug for them. As for the hadith of Ma'iz, the narrations differ in Muslim itself. In some, it is explicitly stated that no pit was dug for him. In some, it is stated that a pit was dug for him. Some scholars reconciled them by saying that the negation of the pit means no deep pit was dug for him, and the affirmation means a pit was dug for him from which he could escape, because he fled. But some wordings in the Sahih clearly indicate that no pit was dug for him at all. Now, the preference between the affirming and the negating: if the two hadiths are equal in authenticity, the one that is preferred is the affirming one because it has an addition of knowledge. The scholars differ in this, and the hadiths in this matter are different. It appears to me that this returns to the opinion of the Imam; if he sees that the public interest requires digging, he digs, otherwise he leaves it.
As for the statements of the scholars, here they are: No pit is dug at all, and this is the school's position. A pit is dug at all, and this is another opposing view. A pit is dug for the woman and not for the man. A pit is dug for him if it is established by evidence, and not if it is established by confession, in order to allow for escape if it is by confession, unlike evidence, where it is not possible. But what appears to me is that the matter returns to the ijtihad of the ruler; if he sees that the public interest requires digging, he digs, otherwise not. Then, on the view of digging, do not think that if we dig for him, we bury the part in the pit. But we dig for him and do not bury him, because if we buried him, he might not die but he would not move at all and would suffer. So perhaps if he remains, he turns to one side and moves a little to ease the matter for him.
This chapter, which is the Book of Hudud, the author mentioned in it the broad outlines of the conditions of the hudud and its establishment and its manner. Then, Allah willing, in the coming chapters, we will be given the explanation of the conditions of each hudud specifically. So the general conditions are what you have known first: reaching puberty, sanity, commitment, and knowledge of the prohibition. These are conditions in every hudud. There are other conditions mentioned in each chapter separately.
This phrase is an athari expression, meaning it was said in a previous era and people followed the predecessors in it. The meaning of "he was killed lawfully" is that he was killed with a valid right. And whoever is killed with a valid right is not liable for compensation. We have previously mentioned a useful rule in the chapter of criminal offenses in this matter, which is that what results from what is permitted is not liable for compensation. But note, he said "And whoever dies in a hudud punishment". The "fi" (in) indicates the time or place, so it must be within the hudud punishment itself. If a person exceeds the hudud in quantity or manner, he becomes liable for compensation. For example, if he is flogged with a strong, hard, new whip but does not exceed the number of lashes, and the flogged person dies, is he liable? Yes, because it is not within the framework of the hudud, but rather an excess. Likewise, if he flogs him one hundred lashes and a hundredth...
The questioner : He is liable.
The Shaykh : He is liable because he added. Likewise, if he exceeds in the intensity of the beating until he dies, he is liable because he exceeded what was permitted, and what results from what is not permitted is liable for compensation. Now, if someone says, "If he flogged him one hundred and one, he did not die from the one, he died from all of them, undoubtedly. Do we distribute the blood money over the number of lashes, or do we say he is liable for the full amount?" We say he is liable for the full amount because he transgressed, and it is possible that without that one lash, he would not have died. So we say he is liable if he increases in the number, in the quantity, or in the manner. Now, if he strikes him in a vital spot, is he liable? He is liable because it is not within the hudud, but rather an excess over it. Likewise, if he strikes him in the face, or the head, or the private parts, from the places where striking is not permissible.
The questioner : The strength of the beating varies; is it defined?
The Shaykh : Yes, it cannot be regulated in reality; regulating it is not possible. But it is according to what the flogged person can bear. For this reason, if it is assumed that he cannot bear it due to the weakness of his body or an illness that is not expected to end, he is flogged with a suitable whip, until we might say, "Flog him with a bundle of palm fronds," meaning you gather the fronds according to the number of lashes and flog him with them. So the flogging is according to the tolerance of the flogged person, and it cannot be regulated because this is a matter of quality, and quality is difficult to regulate because it is not seen.
Then he said "And no pit is dug for the one stoned for zina", meaning no pit is dug for the one who is stoned for zina. Where is the substitute for the subject? The prepositional phrase, because we do not have an object that substitutes for the subject. For this reason, Ibn Malik said:
"And a substitute from a circumstantial phrase or from a source *** Or a preposition with a substitute is proper
And some of these do not substitute if found *** in the wording, an object, and it may be said: "
His saying "And no pit is dug for the one stoned for zina" is the famous view of the Hanbali school that it is not prescribed to dig a pit for him. This issue is disputed among the scholars according to the difference in the narrations. The narrations reported from the Prophet (peace and blessings be upon him) are different. Some indicate clearly that no pit is dug for the one stoned, where the negation of digging is mentioned. Some indicate that a pit is dug for him. And some are ambiguous, where neither this nor that is mentioned. Thus, the scholars differed. Those who said no pit is dug said so because the Prophet (peace and blessings be upon him) did not dig a pit for the woman whose husband's servant committed zina with her, but rather he said to Anis
O Unais! Go to the wife of this (man) and if she confesses (that she has committed illegal sexual intercourse), then stone her to death.
اغد يا أنيس إلى امرأة هذا، فإن اعترفت فارجمهاAs for the statements of the scholars, here they are: No pit is dug at all, and this is the school's position. A pit is dug at all, and this is another opposing view. A pit is dug for the woman and not for the man. A pit is dug for him if it is established by evidence, and not if it is established by confession, in order to allow for escape if it is by confession, unlike evidence, where it is not possible. But what appears to me is that the matter returns to the ijtihad of the ruler; if he sees that the public interest requires digging, he digs, otherwise not. Then, on the view of digging, do not think that if we dig for him, we bury the part in the pit. But we dig for him and do not bury him, because if we buried him, he might not die but he would not move at all and would suffer. So perhaps if he remains, he turns to one side and moves a little to ease the matter for him.
This chapter, which is the Book of Hudud, the author mentioned in it the broad outlines of the conditions of the hudud and its establishment and its manner. Then, Allah willing, in the coming chapters, we will be given the explanation of the conditions of each hudud specifically. So the general conditions are what you have known first: reaching puberty, sanity, commitment, and knowledge of the prohibition. These are conditions in every hudud. There are other conditions mentioned in each chapter separately.