Hadith 2650

Commentary

Al-Khaṭṭābī said: “From the Fiqh of this Hadīth, is that the judgment regarding a person who has some kind of interpretation when permitting a forbidding matter, is different than the judgment upon one who intentionally makes it lawful, without some kind of interpretation. And it also indicates that when one is involved in something from the forbidden matters, and he claims it is due to a matter that is implied by some kind of interpretation, then it is to be understood in accordance with what he said, even if the dominant suspicion is contrary to that. Do you not see that when the affair was such that it implied, and was possible, that the reality was as Hāṭib said, and it was also possible that the reality was as ‘Umar said, may Allah be pleased with him; Allāh’s Messenger ﷺ employed Husnaz-zann (gave him the benefit of doubt) in his case, and he accepted what he claimed in his saying. And in it, is the evidence, that when the spy is a Muslim, he is not to be killed. And they (scholars) differ over what punishment is to be applied to him. So the people of opinion (Aṣḥab Ar-Ra’ī) said; in the case of a Muslim, when he has written to the enemy and instructed them about the secret affairs of the Muslims, he is to be inflicted with a (physical) punishment and imprisoned for a long period. Al-Awzā’ī said, if he is a Muslim, then the Imām is to punish him with a punishment that makes an example of him, and banish him to a remote area while bound, and if he is a Dhimmī (a non-Muslim with a covenant) then his covenant is revoked. Mālik said: ‘I have not heard anything about it, and I think it is up to the independent judgment of the Imām.’ Ash-Shāfī’ī said: ‘When this occurs with a man of high rank, out of ignorance, as happened with Hāṭib, out of ignorance; and he was not considered to be lying, then I like that he be left alone. And if he is not a person of high rank, then it is for the Imām to apply Ta'zīr (punishment) on him.' Also among the Fiqh of the Hadīth, is the allowance of looking at what is exposed of women in establishing a punishment, or establishing testimony affirming a right, and what resembles that of matters. And in it, is evidence that whoever alleges Kufr or Nifāq about a Muslim via some interpretation, and he is among the people of Ijtihād, then punishment is not warranted for him. Do you not see that 'Umar, may Allāh be pleased with him, said: 'Give me permission to strike the neck of this hypocrite' while he was a believer, for whom Allāh's Messenger ﷺ attested to what he claimed about that, then, he was not harsh with 'Umar for what he had said. And that was because, 'Umar was not acting out of hostility in this saying, which was based on the apparent judgment of the religion; since the hypocrite is the one who manifests aid to the religion in the open, and internally aids the disbelievers, and in this incident, what Hāṭib did, resembled what the hypocrites do. Except that Allāh's Messenger ﷺ informed that Allāh, Most High, had pardoned him for what he did in that incident, and so he (also) pardoned him, so the application of hypocrisy ceased being applicable in his case. And Allāh knows best."