These ayaat prescribe punishments for men and women who commit zina. If this comes from women, the first ayah requires the presence of four male witnesses to prove it. It means that the executive authority before which the case goes should call for four qualified witnesses to prove zina. Then, it is necessary that all the witnesses are male. The testimony of women in this connection is not valid.
Since the guilt of zina is of extremely grave nature which not only violates honor and modesty, but also brings bad name to the family, Islam has taken very strict attitude while setting the standard of evidence to prove this guilt. Firstly, there came the condition that witnesses have to be men; the evidence of women was not considered valid. Secondly, the number of the required witnesses is raised to four. As obvious, this condition is very had to meet. It is something which can very seldom take place. This strict approach was taken so that the husband of the woman, his mother or (another) wife or sister do not level undue accusations against her out of personal spite. It was also to check that other ill-wishing people do not get any chance to release their personal hostility by accusing her falsely. Testimony to zina by less than four individuals render their evidence invalid in which case the complainant and the witnesses may all be charged as liars and the Hadd of Qadhf (punishment for false accusation) becomes operative against them for having falsely accused a Muslim.
It has been very clearly said in Surah an-Nur:
“Why did they [who slandered] not produce for it four witnesses? And when they do not produce the witnesses, then it is they, in the sight of Allah , who are the liars.”
Some revered elders, describing the wisdom behind the need to have four witnesses have said that since this case involves two individuals, man and woman, this one single case comes, so to speak, under the purview of one rule for two cases. Since each case requires two witnesses, so four witnesses will be necessary in this case.
Towards the end of the ayah, it is said that should they both repent and correct themselves, then, leave them. It means that, in case they have repented after punishment, they should not be disgraced and punished any more. It does not mean that the act of repentance has absolved them of the punishment because this repentance has been mentioned after punishment as obvious from the ramification of the letter fa (literally, “then turn away”). However, in case repentance has not been made, reproach is in order even after punishment.
No, definite Hadd (punishment) has been described in these two ayaat of the Qur’an. What has been said here is limited to “punish them” and “confine the fornicating women to their homes”. No particular method of such “punishment” has been described either, and this has been left to the discretion of the authorities. Ibn Abbas radhiAllahu anha says that torture here means that they should be verbally reproached and put to shame, as well as, given physical punishment such as hitting with hands and shoes… This statement reported from Ibn Abbas radhiAllahu anha appears to be illustrative. The fact of the matter is that this whole thing has been left to the discretion of the authorities.
In the order of revelation, the command ‘to punish’ the adulterers came first, and it was later that the women guilty of adultery were ordered to be confined to their homes. While giving this command, the Qur’an has mentioned two limits for the period of their confinement. The words used are: “Confine those women to their homes until death overcomes them or Allah prescribes a way for them”. It means that such women shall be confined to their homes till their death, however, if Allah prescribes some other punishment for them while they are still alive, then that punishment will replace the punishment of confinement. That new (expected) punishment has been referred to in this ayah as a way prescribed by Allah. Later this way as promised in this ayah was prescribed and was revealed. Interpreting the word ‘way’ used in this ayah, Ibn Abbas radhiAllahu anha says, “stoning to death, for the married and lashing for the unmarried.” [al-Bukhari, Kitab al-Tafseer, v.2, p.657]
This way stands proved through clear statements of the Prophet sallallahu aalyhi wa sallam himself where the relevant commands for the married and the unmarried have been described separately. The Prophet had announced the Hadd of zina in the case of Maiz ibn Malik radhiAllahu anha and a woman from the tribe of Azd. Since both of them were married, they were stoned to death. In addition to that, a couple from among the Jews of Madina was also stoned to death because of zina and this judgment against them was pronounced on the authority of an injunction of Torah.
The command relating to the unmarried offender is mentioned in Surah al-Nur of the Qur’an itself:
“The fornicator, woman or man, administer each one of them – a hundred lashes.” [24:2]
An ayah of the Qur’an was also revealed earlier to cover the command of rajm (stoning to death), but its recitation was later on abrogated. However, the command itself was retained as operative.
Umar radhiAllahu anha has said, “Surely, Allah sent Muhammad sallallahu aalyhi wa sallam with the truth and sent down to him the Book. Then, in what was revealed by Allah there was the ayah of Rajm. The Prophet stoned and we stoned after him and the revealed command of Rajm stands proved against everyone who commits zina despite being married, whether man or woman.” [al-Bukhari, Muslim, as in Mishkat, p. 309]
To sum up, the command of torturing and confining to homes which appears in these ayaat was abrogated after the subsequent revelation of the legal Hadd punishment of zina, that is, one hundred lashes or Rajm will be mandatory.
(Taken from Maaruf-ul-Qur’an by Mufti Muhammad Shafi Usmani)