Al-Awza'i, Al-Thawri, Ishaq, and Abu Thawr also stated this. Abu Hanifa said: I do not accept evidence regarding an ancient act of adultery, but I would inflict the hadd punishment upon confession of it. This is also the opinion of Ibn Hamid, and Ibn Abi Musa mentioned it as a doctrine (madhhab) of Ahmad, based on what was narrated from Umar, who said: "Any witnesses who testify to a hadd offense without having been present during its occurrence are merely witnesses of spite." Also, because delaying the testimony until such a time indicates suspicion, which wards off the hadd punishment. Our position is the generality of the verse, and that it is a right that is established immediately, so it is established through evidence even after the passage of time, like all other rights. The hadith (of Umar) was narrated by Al-Hasan as mursal (a chain missing the Companion), and the mursal narrations of Al-Hasan are not strong. Furthermore, the delay could be for an excuse or because of absence, and the hadd does not fall away based on mere possibility; for if it were to fall away due to every possibility, no hadd would ever be mandatory at all.

Section: Testimony regarding a hadd punishment is permissible without a plaintiff. We know of no disagreement in this. Ahmad explicitly stated this and used as evidence the case of Abu Bakra, when he and his companions testified against Al-Mughira without a preceding claim, and also when Al-Jarud and his companion testified against Qudama ibn Maz'un for drinking wine without a preceding claim. Additionally, because the hadd is a right of Allah the Almighty, the testimony for it does not require a preceding claim, just like acts of worship. This is clarified by the fact that a claim in all other rights is made by the one entitled to it, and here there is no right for any human being to claim. Therefore, if testimony for it were contingent upon a claim, its execution would be prevented. Once this is established, if someone possesses testimony regarding a hadd, it is recommended that they do not present it, because the Prophet (peace and blessings of Allah be upon him) said: "Whoever conceals the fault of a Muslim [in this world], Allah will conceal it for him in this world and the Hereafter." However, it is permissible to present it, according to the words of Allah the Almighty: "Then bring to witness against them four [witnesses] from among you.", and because those who testified to a hadd in the era of the Prophet (peace and blessings of Allah be upon him) and his Companions were not rebuked for their testimony. It is recommended for the Imam and others to hint at refraining from testifying, based on the statement of Umar to Ziyad: "I see a man and I hope that Allah does not disgrace a man from the companions of the Messenger of Allah (peace and blessings of Allah be upon him) at his hands." Since leaving it is superior, there is no harm in indicating that preference. It has been narrated that a man asked Uqba ibn Amir, saying: "I have neighbors who drink wine, should I report them to the authority?" Uqba ibn Amir replied: "I heard the Messenger of Allah (peace and blessings of Allah be upon him) say: 'Whoever conceals the fault of a Muslim, Allah will conceal it for him in this world and the Hereafter.'"

Section: If four witnesses testify against a woman for adultery, and reliable women testify that she is a virgin, then there is no hadd upon her, nor upon the witnesses. Al-Sha'bi, Al-Thawri, Al-Shafi'i, Abu Thawr, and the adherents of reason (As-hab al-Ra'y) stated this. Malik said: The hadd applies to her, because the testimony of women has no place in hadd punishments, so it cannot be dismissed by their testimony. Our position is that virginity is established by the testimony of women, and its existence prevents the occurrence of adultery outwardly, because adultery cannot occur without penetration into the vagina, and that is not conceivable with the remaining of virginity; for a virgin is she who has not been penetrated in her front passage. If adultery is negated, the hadd does not become mandatory, just as if evidence were established that the person testified against for adultery is impotent (majbub). The reason the hadd is not mandatory upon the witnesses is due to the completeness of their count, combined with the possibility of their truthfulness, as it is possible that he had intercourse with her and then her virginity returned; this constitutes a doubt that wards off the hadd from them, without mandating it upon her, for the hadd is not mandatory based on doubts. It is required to suffice with the testimony of one woman because her testimony is accepted in matters that are not witnessed...