Aggravated Insult - Qazf Punishable by Hadd

Section 13.      Aggravated Insult – Qazf Punishable by Hadd  

False Accusation of a sane adult Muslim of committing Zina, bestiality, Act of the people of Lut, or being born of unmarried parents is Qazf punished by Hadd unless the accuser proves the truth of the accusation beyond all doubt.

Explanatory Notes

The offense occurs once the false accusation is made. It means that the mental element required for conviction can be (a) intentional – the actor desired making the false accusation and desired its negative effect or (b) knowingly – the actor was aware that he is making false accusation but may not desire a particular effect for making the accusation or (c) recklessness – the actor was not sure about the accuracy of the accusation but nevertheless made it and thereby was taking unjustifiable risk.

Section 13.1    Standing in Aggravated Insult

A complaint can be filed by:

1. The victim, or any person authorized by him/her; or
2. Any of the ascendants or descendants of the victim may continue the complaint process if the victim initiated the process before death. If the victim was aware of the Qazf and did not initiate the process before his death none of his/her ascendants or descendants may initiate the proceedings.
3. If the victim is dead at the time of Qazf, any of ascendants or descendants of the victim may file a complaint.

Explanatory Notes

Section 13.1 adopts Imams Malek, Ahmed and Shafi’i opinions that any of the ascendants or descendants of the victim may continue the complaint process if the victim initiated the process before death.

Section 13.2    Exemptions from Prosecution, Mitigating Circumstances and Pardoning the Offender

1. The offender who commits Qazf against any of his descendants is exempt from prosecution.
2. When a victim, the complainer of Qazf, dies before the proceedings conclude, the proceedings shall end and the punishment is not enforced.
3. The transmitter of the false accusation of Qazf is excused from Hadd punishment. However, the court may impose on the transmitter of the false accusation of Qazf, Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding….
4. The victim(s) may pardon the offender at any time before the execution of the punishment.

Explanatory Notes

The offender who commits Qazf against anyone from his line of descendants is immune from prosecution because such affinity raises doubt sufficient to preclude Hadd punishment.  According to Imams Shafi’i and Ahmed the victim(s) may pardon the offender any time before the execution of the punishment. See 10 Ibn Qudamah, Al-Mughni wa Al-Sharh Al-Kabir at 204.

Section 13.3    Proof of Qazf Punishable by Hadd

1. Witness Testimony is Required for Conviction Either;
2. Two adult credible Muslim male witnesses, other than the victim of Qazf, must testify that they witnessed Qazf by direct evidence, if the defendant is Muslim.
3. Two adult credible male witnesses, Muslim or Non-Muslim, other than the victim of Qazf, must testify that they witnessed Qazf by direct evidence, if the defendant is non-Muslim.
4. Admission
5. A defendant’s non-retracted informed admission of all elements of the offense required for conviction suffices to establish guilt.
6. A defendant’s admission is not evidence of guilt against others.

Section 13.4    Qazf by Hadd Rebutting Circumstances 

1. The defendant may deny committing Qazf and provide supporting evidence including rebuttal witnesses.
2. The defendant may admit making the statement subject of Qazf, assert that the victim admitted the subject matter of Qazf and provide at least two adult credible male Muslim witnesses to testify that the victim admitted the subject matter of Qazf, if the defendant(s) is Muslim. The defendant may admit making the statement subject of Qazf, assert that the victim admitted the subject matter of Qazf and provide at least two adult credible male Muslim or non-Muslim witnesses to testify that the victim admitted the subject matter of Qazf, if the defendant(s) is non-Muslim
3. The defendant may admit making the statement subject of Qazf, and provide at least four male adult Muslim credible witnesses who testify as to the truthfulness of the subject matter of Qazf, if the defendant(s) is Muslim. The defendant may admit making the statement subject of Qazf, and provide at least four male adult Muslim or non-Muslim credible witnesses who testify as to the truthfulness of the subject matter of Qazf, if the defendant(s) is non-Muslim.

According to liʻān procedures, when a husband accuses his wife of Zina before a court, he shall swear by Allah four times that he is truthful in his accusation and thereafter call for the Allah’s curse on him if he is a liar. Once the husband has fulfilled this evidentiary burden, the accusation is deemed to be proven unless the wife rebuts the evidence by swearing by Allah four times that she is innocent and thereafter calls for Allah’s wrath on her if the husband is truthful. When the wife fulfils her aforementioned evidentiary burden, the court shall pass an unappealable dissolution of marriage order.  Once the liʻān procedures concludes, a husband shall not be subject to the penalty of Qazf with respect to the accusation of Zina.

Section 13.5    Punishment for Qazf Punishable by Hadd

1. Whoever commits Qazf punishable by Hadd shall be punished by being whipped eighty stripes.
2. The offender of Qazf punishable by Hadd is deemed to be an uncredible witness unless he shows sincere repentance.

Explanatory Notes

Imams Ahmed, Shafi’i and Malak suggested that the offender of Qazf punishable by Hadd is deemed to be an uncredible witness unless he shows sincere repentance.