town are fornicators,” he is not subject to the prescribed punishment for false accusation of fornication, because this is a disgrace upon himself: people would not imagine that he was truly accusing the townspeople of what he has alleged against them. Thus, he has not sullied their honor, and they would not be concerned by it. Indeed, if he did this, they would consider him insane. Nevertheless, he is subject to discretionary punishment. The same applies if he accuses a group of whom fornication would not ordinarily be conceivable—for example, if he accuses one hundred men: he is not subject to the prescribed punishment, because no disgrace attaches to them, though he is subject to discretionary punishment. But if fornication or sodomy would ordinarily be conceivable of them, then he is subject to the prescribed punishment for false accusation of fornication, because the affront does attach to them.
If the people of the town are few—for example, only three men and their wives, because everyone else has left it—and he accuses them, is he subject to the prescribed punishment? Yes, he is. What the jurists mean, therefore, is a town whose inhabitants are numerous, such that no disgrace attaches to them by his accusing them.
His statement, “The prescribed punishment for false accusation of fornication is waived by pardon, and it is not carried out without a request”: this is because it is a right belonging to the person accused. If it is the right of the person accused and he does not seek it, the accuser is not subjected to the prescribed punishment. Is he subject to discretionary punishment? The apparent purport of their words is that he is not, since it is the right of the person accused and the accused person has not sought it. However, if the ruler considers it appropriate to impose discretionary punishment, he may do so for the general purpose of reforming society and preventing such expressions from being uttered among them.
His statement, “The prescribed punishment for false accusation of fornication is waived by pardon”: the apparent meaning of his words is that this applies even after the matter has been brought before the imam or judge, because it is a right exclusively belonging to the person accused. This differs from theft: if a man’s property is stolen, he may choose not to pursue the thief, and the imam does not take action against the thief so long as the owner of the stolen property has not brought a claim. But once the matter is referred to the authority, he no longer has the right to waive it,