Umar ordered that she be stoned. He said: "Take her back." Then he came to him and said: "O Commander of the Faithful, did you not know that the pen is lifted from three: from the insane person until he recovers, from the sleeper until he wakes, and from the child until he reaches puberty?" He said: "Yes." He said: "Then what is the matter with this woman?" He said: "Nothing." He said: "Then release her." [He said: So he released her.] (6). He said: Then Umar began to declare the greatness of Allah (takbir).

Section: If he is insane at one time and sane at another, and he confesses during his interval of sanity that he committed adultery while he was sane, or if evidence is established against him that he committed adultery during his interval of sanity, then the hadd is applicable to him. We know of no disagreement (7) regarding this. This is the view of al-Shafi'i, Abu Thawr, and the Ahl al-Ra'y (the people of discretion/reason), because the adultery requiring the hadd was committed by him during a state of legal accountability while the pen was not lifted from him, and his confession was made during a state when his speech is considered valid. If he confesses during his interval of sanity but does not attribute it to a specific time, or if witnesses testify against him for adultery but do not attribute it to the time of his sanity, the hadd is not applicable; because it is possible that it occurred during his state of insanity, so the hadd is not applied in the presence of doubt. Abu Dawud narrated in the hadith of the insane woman brought to Umar that Ali said: "This is the mentally impaired woman of the tribe of so-and-so; perhaps the one who approached her did so during her affliction." Umar said: "I do not know." Ali said: "And I do not know."

Section: The pen is lifted from the sleeper. If one has sexual intercourse with a sleeping woman, or a woman takes the male organ of a sleeping man into herself, or if adultery occurs on his part while he is asleep, there is no hadd upon him; because the pen is lifted from him. If he confesses while asleep, no attention is paid to his confession; because his speech is not considered valid and does not indicate the truth of its intended meaning. As for the intoxicated person and the like, the hadd for adultery, theft, drinking, and slander is applicable to him if he committed that while intoxicated; because the Companions (may Allah be pleased with them) made the hadd for slander applicable to him because intoxication is a cause for it, and because he caused these prohibitions to occur by a reason for which he is not excused, thus he is like someone who has no excuse. It is possible that the hadd is not applicable; because he is not sane, so that constitutes a doubt (shubha) in warding off what is warded off by doubts, and because his divorce does not take effect according to one narration, so he is like the sleeper. The first (view) is more appropriate; because dropping the hadd from him leads to the situation where anyone who wants to commit these prohibited acts would drink wine and do whatever he likes, and nothing would be held against him; and because intoxication is a source of committing prohibitions and a cause for it, so he has caused them to occur while he was sober. As for if he confesses to adultery while intoxicated, his confession is not considered; because he does not know what he is saying, and his statement does not indicate the truth of his report, so he is like the statement of the sleeper and the insane person. Burayda narrated that the Prophet (may Allah be pleased with him) sniffed Ma'iz's breath. Narrated by Abu Dawud (8). He only did that to know whether (9) he was intoxicated or not; if the intoxicated person's confession were acceptable, there would have been no need to ascertain his innocence from it.