Limitation o
the delay in
queition.
The evidence
o f the wit-
neffcs is valid
againft one of
the parties, although
the
ethers be abftnt'j
T h e r b are various opinions among the learned refpecting the
limitation of the Hakddhn, or diflance o f time, now under eonfideration.
In the Jama Sagheer the limitation of it appears to fee fix months; .and
the lame is mentioned by I ’ah&yee. Haneefa does not prefcribe any
limitation, hut leaves it to the difcretion of the magiftrate, to be determined
according to the cuiloms of each refpedtive age or country.
It is recorded from Mohammed that he fixed the limitation of it to one
month, as any lefs fpace of time falls within the defcription of J jil* ;
(and there is a record from Haneefa and AbooToofaf to the fame effedt;)
and this lalt is the mold approved dodtrine, where the witneffes are
not at the diflance of a month’ s journey from the Kazee; but where
there is a diflance of a month’s journey between them, their tcfli-
mony mull be credited, becaufe there appears on this occafion an ob-
ftrudtion to their giving evidence,, namely, their diflance from the
Kdzee; and hence they are not in fuch a cafe liable to fufpicion.
The limitation of l ’akadim, in refpedt to the punifhment of wine-
drinking, is alfo the fame, according to Mohammed1 According to
'the two Elders the limitation of it is confined to the going off of t he
fmell of the liquor, as fhall be hereafter demonftrated.
I f witneffes bear evidence againft a perfon “ that he has com-
“ mitted whoredom with a certain woman,” and the woman be
abfent, yet punifhment mull be inflidted on the man; but if witneffes
bear evidence againft a man that he has committed theft, and the
owner of the property ftolen be abfent, the hand of the accufed cannot
be cut off. The difference between thefe two cafes is that in
theft the previous claim of the plaintiff is a neceffary condition to the
admiflion of evidence, but not in whoredom;— and the owner of the
property ftolen being abfent, no claim can be inftituted.
* B y A jil,is meant a fpace o f time fo fhort as not to admit o f its talcing the defcription
o f delay. T h u s the payment o f a debt is termed M oa jil [prompt] where it takes place
at any time within a month after it is due.
7 O b j e c t i o n .
O b j e c t io n .— It would appear that, in the cafe of whoredom
alfo, punifhment ought not to be inflicted on the man, becaufe it is
poffible that if the woman were prefent fhe might advance fome plea
productive of a demur.
R e p l y .— This is a conclufion founded on mere conjefture, and
therefore of no weight.
I f witnefles give evidence againft a man “ that he has com-
“ mitted whoredom with a woman whom they do not know,”
punifhment is not to be inflidted upon the man, becaufe it is poffible
that the woman may be his wife, or his Have, and this, with refpedt
to a Mujfulman is moft probable. But if a man make confeffion that
“ he has committed whoredom with a woman unknown,” punifhment
muft be inflidted on him, fince, if the woman with whom he
committed the fadt had been either his wife or his flave,- fhe could
not have been unknown to him.
If two witnefles give evidence againft a man, that “ he has
“ committed whoredom with fuch a woman, and forced her there-
“ to,” and two other witnefles give evidence to the fame fadt, but
with this variation, that “ the woman was confenting,”— In this
cafe, (according to Haneefa and Ziffer) punifhment drops with refpedt
to both the parties; and fuch alfo is the opinion of Shafei—
The two difciples fay that punifhment is in this cafe to be inflidted
on the man alone; becaufe the varying witnefles do yet agree in this
that the man has committed whoredom, which is the occafion of
punifhment to him; for the only difference between the witnefles
is that one party of them teftifies to an additional offence, (namely,
his having forced the woman,) which does not occafion the remiffion
of punifhment with refpedt to him: contrary to the cafe of a woman,
with refpedt to whom punifhment drops, becaufe her confent is the
condition on which her being liable to punifhment depends, and this
confent is not proved, becaufe of the contradidlion among the witnefles.
unlefsthe
other be »«-
known*
Cafe o f aeon*
tradition in
the evidence.