Contradiction
•among the
witnefles, in
regard to the
Jilace, prevents
punifli-
xnent.
3P U N I S H M E N T S .
lieffes. The arguments of Haneefa on this point are twofold;_
first, the evidence is contradidtory with refpedt to the man, becaufe
whoredom is one act, committed by tivo perfons, the man and the
woman,—and as the evidence is contradictory with refpedt to the
woman, it muft be held fo with regard to the man hkewife;___ .
secondly, the two witnefles who bore teftimony to the confent
of the woman areJlanderers, and confequently their teftimony is unworthy
of any credit.
.Objection..— From this it would appear that punilhment for
flander is incurred by them, whereas it is not fo.
R e p l y .— Punilhment for flander cannot be inflicted-on them, on
account of the evidence of the other two witnefles, who havedepofed
to force having been ufed by the man; for the woman can no longer
'be confidered as married, in the fenfe which induces punilhment for
flander, lince the delcription of married (in this ienfe) is not applicable
to a woman after Ihe has been enjoyed unlawfully, although
ihe be forced.
If two witnefles bear evidence againft a man, that “ he has com-
“ mitted whoredom with fuch a woman in Koofa," and two others,
“ that he had committed fuch whoredom with that woman mBa/ra,"
in this cafe punilhment drops with relpeCt to both the man and the woman,
becaule the circumftance alleged is the act o f whoredom, and that
is contradidted by the contradiction with refpedt to the place. The
■ evidence to the fadt is here in both inftancesdefedtive, but yet the
witnefles are not liable to punilhment for flander, becaule of a demur,
•as the fadt o f whoredom, to which they bear teftimony, is 'o»t’ fn gle
whoredom with refpeft to the perpetration of it, lince the whoremonger
is the lame perfon, and the whore is alfo the fame perlon, in
the evidence of the contradictory witnefles on both tides, and there
is no difference except with relpedt to the place in which the fact
was committed. But if witnefles contradict each other, by two
y>eifons bearing evidence that fuch a man has committed whoredom
with
with fuch a woman in fuch a fpot of fuch a houfe, and by two
other perfons giving evidence that the man had committed the
whoredom with that woman in another fpot of the houfe, in this
cafe punilhment is to be inflicted upon that-mftn. This is upon a
favourable conftrudtion *. Analogy would fuggeft that punilhment is
not incurred, lince there is - alio in this cafe a politive contradiction
with relpedt to the place in which the fadt was committed. But the
realon for a more favourable conftrudtion is that a coincidence between
the teftimonies may be conceived, by fuppoling the adt to have been
begun in one corner of the houfe, and compleated in another corner, in
confequence of the motions of the parties ; and it is1 allb poflible that
the adt may have been committed in the middle of the houfe, and a
perlon feeing it from the front may conceive it to be performed in
the forepart of the houfe, and another viewing it from the back 'part
may conceive it to be performed in the back part of the houfe; and
each bears evidence according to his own conception.
I f four witnefles bear evidence againft a man “ that he has been
41 guilty of whoredom with fuch a woman at fun-rife in Hind," (a
place near Koofa, which is allb called the place o f ribdal-Rihmdn,) and
four other witnefles give evidence againft the man that “ he has
“ been guilty of whoredom with fuch a woman at funrife, in-
Nookhla," (which is allb a place near Koofa,') in this cafe neither the
man nor the woman are liable to punilhment for whoredom, nor are
their accufers liable to punilhment for flander.' The accufed are not
liable to punilhment for whoredom, becaufe the teftimony of the con-
tradidling witnefles muft, on one part, be fa lfe, although it be Im-
poflible to afcertain on which fide of the evidence the falfehood lies :
and the accufers are not liable to punilhment for fander, becaufe it is
poflible that the evidence on one fide may be true ; and as this pofli-
bility applies equally to both parties, punilhment for flander cannot
be inflidted upon either.
* T h a t is to fay, w ith rcjpeft to the w itnejfes; For i f the evidence be not fufficient to
fubjedt the parties to punilhment, the witnefles are -liable to punilhment for pander.
V o l . I I . G I s
Evidence,
agreeing in
point of time,
but contradictory
in .
point of place,
does not oe-
cafionpunilh-
meut.