upon his confession, he stones him, and if he retracts it, he leaves him.
The Second Section: That he is whipped, then stoned, according to one of the two narrations. 'Ali, may Allah be pleased with him, did this. Ibn 'Abbas, Ubayy ibn Ka'b, and Abu Dharr also held this view. 'Abd al-'Aziz mentioned this from them, and he chose it. Al-Hasan, Ishaq, Dawud, and Ibn al-Mundhir also held this view. The second narration is that he is stoned and not whipped. It is narrated from 'Umar and 'Uthman that they both stoned and did not whip (18). It is narrated from Ibn Mas'ud that he said: "If two penalties (hadd) of Allah Almighty coincide, in which there is killing, the killing encompasses that." Al-Nakha'i, al-Zuhri, al-Awza'i, Malik, al-Shafi'i, Abu Thawr, and the People of Opinion (Ahl al-Ra'y) all held this view. Abu Ishaq al-Jawzajani and Abu Bakr al-Athram chose this, and they supported it in their "Sunan" works because Jabir narrated that the Prophet (may Allah bless him and grant him peace) stoned Ma'iz and did not whip him, and he stoned the Ghamidiyyah woman and did not whip her. He said: "And go, O Unays, to the wife of this man; if she confesses, then stone her." Agreed upon (19). He did not order him to whip her, and this was the latter of the two commands from the Messenger of Allah (may Allah bless him and grant him peace), so it was obligatory to prioritize it. Al-Athram said: I heard Abu 'Abd Allah say regarding the hadith of 'Ubadah: "It is the first penalty that was revealed, and the hadith of Ma'iz is after it; the Messenger of Allah (may Allah bless him and grant him peace) stoned him and did not whip him, and 'Umar stoned and did not whip." Isma'il ibn Sa'id transmitted something similar from him. This is because it is a penalty that includes killing, so whipping does not combine with it, like apostasy, and because...
(18) Al-Albani attributed it to Ibn Abi Shaybah, and we did not find it in his Musannaf. See Al-Irwa', 7/368. (19) Extracted by Al-Bukhari, in: The Chapter on If They Agree to a Settlement of Injustice..., from the Book of Settlements (Sulh), and in: The Chapter on Conditions that are not Permissible in Penalties, from the Book of Conditions, and in: The Chapter on How the Oath of the Prophet (may Allah bless him and grant him peace) Was, from the Book of Oaths, and in: The Chapter on Confessing to Adultery, from the Book of Penalties (Hudud), and in: The Chapter on Whether It Is Permissible for the Ruler to Send a Man Alone..., from the Book of Judgments (Ahkam), and in: The Chapter on What Came Regarding the Permissibility of a Trustworthy Individual's Report, from the Book of Reports (Ahad). Sahih al-Bukhari, 3/241, 250, 8/161, 208, 9/94, 109, 110. And Muslim, in: The Chapter on the One Who Confesses Adultery Against Himself, from the Book of Penalties (Hudud). Sahih Muslim, 3/1324, 1325. It was also extracted by Al-Tirmidhi, in: The Chapter on What Came Regarding Stoning for the Married (Thayyib), from the Chapters on Penalties (Hudud). 'Aridat al-Ahwadhi, 6/205, 206. And Al-Nasa'i, in: The Chapter on Protecting Women from the Council of Judgment, from the Book of Judicial Etiquette (Adab al-Qudat). Al-Mujtaba, 8/211. And Ibn Majah, in: The Chapter on the Penalty for Adultery, from the Book of Penalties (Hudud). Sunan Ibn Majah, 2/852. And Al-Darimi, in: The Chapter on Confessing to Adultery, from the Book of Penalties (Hudud). Sunan al-Darimi, 2/177. And Imam Malik, in: The Chapter on What Came Regarding Stoning, from the Book of Penalties (Hudud). Al-Muwatta', 2/822. And Imam Ahmad, in: Al-Musnad, 4/115, 116.
