One o f four
witnefles retracing,
a fter
lapidation
upon the a ccufed,
incurs
punifhment
for flander,
a nd is refpon-
fible for one-
fourth of the
fine o f blood.:
If four witnefles give evidence againfl a man, that he has committed
whoredom, and he fuffer lapidation, and one of the witnefles
afterwards retradt, punifhment for flander is to be inflidted upon him
alone, and he is alfo refponfible for one-fourth of the fine of blood,
The reafon for one-fourth only of the fine of blood being due from
him is that three-fourths of the veracity of the evidence remain, in
confequence of the evidence of the three remaining witnefles fiill continuing;
by the evidence, therefore, of the witnefs who retradts, only
tone fourth of the veracity is affedted.— (Shafe'i fays that the death of
the retracing witnefs is incurred, and not a fine upon his property,
according to his tenets concerning 'witnefles in retaliation, as fhall be
hereafter lhewn in treating of Deyit.) ----- That punifhment for
flander is incurred by the witnefs is the opinion of our three dodtors.
Ziffer fays that punifhment for flander is not due, becaufe, if the flan-
derer be confidered as the flanderer of a living perfon, his flander is
rendered void by the death of that perfon ; or, if he be confidered as
the flanderer of a defuntl, the faid defunct has fuffered lapidation under
a fentence of the Kdzee, whence originates a demur refpe&ing the
propriety of punifhment for fonder. The argument of our dodlors is
that evidence to whoredom does not become flander, in confequenqç
o f retradlation, on any other account than as the evidence, is thereby
cancelled ; the evidence, therefore, at the time of retradlation, is rendered
Jlander with refpedl to the dead ; and a perfon who flanders a
married perfon defundt is liable to punifhment for flander. With
refpedt to what Ziffer advances, (that the defundl has fuffered lapidation
under a fentence o f the Kâzee, which gives rife to a demur re-
fpedtingthe propriety of punifhment for flander,) we reply, that upon
•the evidence, which is the proof, being cancelled by retradlation, the
decree of the Kâzee, fentencing lapidation, does not give rife , to-any
demur in bar of punifhment for flander; wherefore punifhment for
flander is to be inflidted upon him who retradls from his teflimony,:
contrary to what would be the cafe if any other than the retradling
perfon were to flander him who had fuffered lapidation, as the latter
5 I ’ is
is not a Mahfan in refpedt to any other perfon, fince the fentence of
the Kdzee againfl the deceafed is, with regard to that other, proper
and ju jl.— What is now advanced regards a cafe where one of the
witnefles retradts, cfter lapidation: but if one of them were to retradt
before the execution of lapidation,, after fentence has been pafled by
the Kazee,. in this-cafe punifhment for flander is to be inflidted on all
the witnefles ;- and the punifhment of the accufed is remitted. This
is the dodtrine of the two Elders.. Mohammed fays that, in this cafe
alfo, punifhment for flander is to be inflidted on the retradling witnefs
alone, becaufe the evidence of the witnefles has been corroborated by
the Kdzee’’s fentence, and therefore is not cancelled except with refpedt
to the retraBor alone,— in the fame manner as where the witnefs
retradts after the execution of the fentence.— The argument of
the two Elders is, that the inflidlion o f punifhment is only a fupple-
ment to the fentence of the Kdzee ; the retradlation in the prefent-
inflance therefore, is the fame in effedl, as if one of the witnefles
were to retradt before the fentence had been pafled; (for which reafon
punifhment drops with refpedt to the accufed;) and if one of the witnefles
were to retradt previous to the Kdzee's fentence of lapidation,
punifhment for flander would be inflidted upon all of them. Ziffer
fays that in this cafe alfo punifhment for flander'would be inflidted
on the retradling witnefs alone, becaufe his retradlation is not of account
with regard to any except himfelf- T h e argument of our
dodtors is,that the declaration of the witnefles is radically fander, and
does not become evidence until it be fo rendered by a fentence of the
Kdzee, pafled in conformity to i t ; and where this fentence has not
been pafled, fuch declaration continues to be flander, as it radically
was; wherefore punifhment for flander is to be inflidted upon all of
them.
I f five perfons bear evidence [to whoredom,] and one of the five
retradt after lapidation, no penalty whatfoever is incurred by the
witnefs fo retradling,— becaufe, four witnefles flill remaining, the
evidence
but i f he retrait
before lapidation,
all
the witnefles
are liable tO'
punifhment.
One o f fiv e
witnefles, retracing,
does
not incur
either punishment
or fine.