And Ahmad’s explicitly reported position is to withhold judgment on the matter. Among those who permit execution as a discretionary punishment for “grave sins” are the followers of Abū Hanīfah, in certain cases where they describe execution as a measure of governance. Examples include executing someone who repeatedly commits sodomy or repeatedly kills with a heavy implement. They permit his execution as a measure of governance and discretionary punishment, although Abū Hanīfah neither requires nor even permits execution for someone who has committed the act only once.

His two leading disciples, however, join the other imams in differing with him: they hold that retaliatory execution is obligatory for such killing, and that the perpetrator of sodomy is subject either to execution in all cases, whether he is muhsan (possessing the requisite marital status) or not—as held by Mālik, Ahmad in the better-known of the two positions reported from him, and al-Shāfi‘ī in one of his two opinions—or to the same prescribed punishment as someone who commits unlawful sexual intercourse. The latter is the position of Abū Hanīfah’s two disciples, al-Shāfi‘ī in the better-known of his two opinions, and Ahmad in one of the two positions reported from him.

What is transmitted from the Prophet, may Allah bless him and grant him peace, and his Rightly Guided Caliphs accords with the first view. The Prophet, may Allah bless him and grant him peace, ordered that a man whose wife had permitted him to have intercourse with her slave woman be given one hundred lashes. Abū Bakr and ‘Umar gave one hundred lashes to a man found in bed with a woman. ‘Umar ibn al-Khattāb also gave one hundred lashes to a man who had forged his seal and thereby taken money from the public treasury; he then gave him another hundred lashes on each of the second and third days. This is not the place to discuss the various forms of discretionary punishment at length, for they have many branches.

As for beating an accused person, when it is known that the property is in his possession but he has concealed and denied it, in order to make him disclose its whereabouts, there is no doubt concerning this. He is beaten to compel him to fulfil his obligation to disclose its whereabouts, just as he is beaten