Chapter: Testimony concerning fornication

Testimony to an act of fornication is accepted only when the witnesses state explicitly that they saw actual penetration—either into the vagina or into the anus. In the view of Mālik and his companions, such intercourse entails the prescribed punishment (ḥadd), payment of the full bridal due (ṣadāq), the obligation of a major ritual bath (ghusl), and it invalidates both the pilgrimage and the fast. It does not, however, make an irrevocably divorced woman lawful for her first husband, and it confers the status of iḥṣān only through intercourse in the vagina.

If the witnesses disagree about the month, the day, the hour, the town, the precise spot, or the manner of the act, they are all deemed slanderers (qadhfa), the ḥadd for slander is enforced on every one of them, and the ḥadd is waived for the accused. It makes no difference whether only one of them differs with the others on any of these points or they all differ among themselves.

Should the witnesses have given their testimony together, and one of them afterwards—before the punishment is carried out—retracts his statement or expresses doubt about it, they all become slanderers and are all flogged. If the retraction or doubt comes after the punishment has already been executed, only the one who retracts or doubts is flogged.

If four witnesses accuse a man of fornication and three of them complete their testimony while the fourth does not, the three alone are flogged. If only three appear and ask the judge for time to bring a fourth, he may grant them whatever delay he considers appropriate; but if they then admit that no fourth witness exists, they are flogged. If they have not yet been flogged and a fourth witness arrives who gives identical testimony, the punishment is lifted from them and imposed on the defendant.

Secondary testimony—attesting to the testimony of others—is admissible in ḥudūd and in other matters. This requires eight upright witnesses: either every two of them attest to the testimony of one of the original four, or the eight testify collectively concerning the four collectively. Six attesting to the testimony of three together with one direct eyewitness counts as a complete testimony, and so does the presence of three direct eyewitnesses along with two who attest to the testimony of the fourth.