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Canceling the penalty of al-Mugheera

Source: Al-Nass Wal-Ijtihad, Text and Interpretation
By: Allama Abdul Husayn Sharafuddin al-Musawi


Al-Mugheera bin Shu’ba had committed adultery with some married women such as Umm Jameel bint Amr from the tribe of Qays and this event was one of the most famous events in the history of the Arabs. It was in the seventeenth year of hijra. All the historians, who had recorded the events of that year, had mentioned this event in their books. Abu Bakra, 223 who was one of pious companions of the Prophet (S) and one of the keepers of the prophetic traditions, Nafi’ bin al-Harith, who was also one of the Prophet’s companions, and Shibl bin Ma’bad had witnessed against al-Mugheera in this case.
The witness of these three men was clear and certain that they had seen al-Mugheera doing his sin with their eyes but when the fourth witness, Ziyad bin Sumayya, came to witness, the caliph made him understand that he intended not to disgrace al-Mugheera and then he asked him about what he had seen. He (the fourth witness) said: “I heard fast breathing and I saw him sleeping on her abdomen.” Umar asked him: “Did you see him inserting his (…) into her (…) and taking it out like a stick in a kohl jar?” He said: “No, but I saw him lifting her legs and I saw his testicles swaying between her thighs. I saw strong motivation and heard loud breathing.” Umar asked: “Did you see him inserting his (…) and taking it out like a stick in a kohl jar?” He said: “No, I did not.” Umar said: “Allah is great! O Mugheera, get up and beat them!” He executed legal penalties against the three witnesses.
Here are the details of this event as Judge Ahmad ibn Khillikan has mentioned in his book Wafiyyat al-A’yan. He said: “As for the matter of al-Mugheera bin Shu’ba and the witness against him…Umar had appointed al-Mugheera bin Shu’ba as the emir of Basra. He often left Darul Imara (the ruler’s office) at midday and Abu Bakra often met him and asked him: “Where is the emir going?!” He said: “To do something.” Abu Bakra said: “The emir is visited and he does not visit!”
He often went to a woman called Umm Jameel bint Amr, whose husband was al-Hajjaj bin Utayk bin al-Harith bin Wahab al-Jashmi…while Abu Bakra and his brothers Nafi’, Ziyad and Shibl bin Ma’bad, the sons of Sumayya, were in their room and Umm Jameel bint Amr was in the opposite room, the wind opened the door of Umm Jameel’s room and they saw al-Mugheera and the woman in a state of making love. Abu Bakra said: “It is an ordeal that you are afflicted with! Look!” They looked until they became certain of what al-Mugheera and the woman had done.
Abu Bakra sat out waiting until al-Mugheera came out. He said to him: “Since you do so, then you have to retire from the emirate!” Al-Mugheera went to lead the people in offering Dhuhr Prayer and Abu Bakra went there too. Abu Bakra said to al-Mugheera: “By Allah, you do not lead us in the prayer after you have done your sin!” The people said: “Let him lead us in the prayer for he is the emir and you write to the caliph Umar about that.” They wrote to Umar and he ordered them all; al-Mugheera and the witnesses to come to him.
When they came, Umar sat in his meeting and sent for the witnesses and al-Mugheera. Abu Bakra advanced and Umar asked him: “Did you see him between her thighs?” Abu Bakra said: “Yes, by Allah, as if I saw clefts of smallpox on her thighs!” Al-Mugheera said to him: “You were very accurate in your look!” Abu Bakra said: “Yes, I wanted to be certain of what Allah would disgrace you with.” Umar said to Abu Bakra: “No, until you witness that you have seen him inserting his (…) in her (…) like a stick in a kohl jar.” Abu Bakra said: “Yes, I witness of that.” Umar said: “O Mugheera, a quarter of you has gone!”
Then Umar called for Nafi’ and asked him: “What do you witness of?” He said: “I witness of what Abu Bakra has witnessed of.” Umar said: “No, until you witness that you have seen him doing with her as a stick in a kohl jar.” He said: “Yes, until he reached the top.” Umar (may Allah be pleased with him) said to al-Mugheera: “Your half has gone!” Then Umar called for the third witness and asked him: “What do you witness of?” He said: “Like the witness of my two companions.” Umar said to al-Mugheera: “Three thirds of you have gone!”
Then Umar wrote to Ziyad who was absent. When Ziyad came, Umar held his meeting in the mosque. The heads of the Muhajireen and the Ansar attended the meeting. When Umar saw Ziyad coming, he said: “Come to me! I see a man that Allah will not disgrace a man of the Muhajireen via his tongue!” Then Umar (may Allah be pleased with him) raised his head towards him and said: “What do you have with you, O you droppings of bustards?”
It was said that al-Mugheera had got up to Ziyad and Ziyad said: “No cache for a perfume after a bride!” Al-Mugheera said to him: “O Ziyad, remember Allah and remember the Day of Resurrection. Allah, His Book, His Messenger and Ameerul Mo’mineen have spared my blood except if you say what you have not seen. Let not a bad scene lead you to say what you have not seen. By Allah, if you were between my abdomen and her abdomen, you could not see my (…) going into her (…).”
Ziyad’s eyes began shedding tears and his face became reddish. He said: “O Ameerul Mo’mineen, I have not seen exactly what the others have seen but I saw a state of making love and I heard fast breathing and I saw him sleeping on her abdomen.” Umar (may Allah be pleased with him) asked him: “Did you see him inserting it as a stick in a kohl jar?” He said: “No, I did not.” It was said that Ziyad had said: “I saw him lifting her legs and saw his testicles swaying between her thighs then I saw strong motivation and I heard loud breathing.” Umar said: “Did you see him inserting it like a stick in a kohl jar?” He said: “No.” Umar said: “Allah is great! O Mugheera, get up and beat them!” Al-Mugheera whipped Abu Bakra eighty whips and then he whipped the rest.
Umar admired the saying of Ziyad and so he cancelled the legal penalty of al-Mugheera. Abu Bakra said after he had been whipped: “I wtness that al-Mugheera has done so and so.” Umar intended to whip him again but Ali bin Abu Talib said to him: “If you whip him, then you have to stone your friend (al-Mugheera).” Umar left Abu Bakra alone and asked him to repent. Abu Bakra said: “You ask me to repent just to accept my witness.” Umar said: “Yes.” Abu Bakra said: “I will never witness between two persons as long as I live.” When the witnesses were whipped, al-Mugheera said: “Praise be to Allah Who has disgraced you.” Umar said: “Allah disgraced a place, in which they saw you.”
Umar bin Shayba mentioned in his book Akhbar al-Basra (the news of Basra) that when Abu Bakra had been whipped, his mother slaughtered a sheep and put its skin on Abu Bakra’s back because, as it was said, that he had been whipped too severely. Abdurrahman bin Abu Bakra said that his father, Abu Bakra, had taken an oath that he would never talk with Ziyad as long as he lived. When Abu Bakra was about to die, he recommended that no one would offer the prayer (after his death) for him except Abu Barza al-Aslami, whom the Prophet (S) had associated as a brother with Abu Bakra. When Ziyad heard of that, he left to Kufa. As for al-Mugheera bin Shu’ba, he was grateful to Ziyad and he did not forget his favor.
Once Umm Jameel came to Umar bin al-Khattab during the season of hajj while al-Mugheera was present. Umar asked al-Mugheera: “O Mugheera, do you know this woman?” He said: “Yes, she is Umm Kulthoom bint Ali.” Umar said to him: “Do you confuse me? By Allah, I do not think that Abu Bakra has told a lie when he witnessed against you and I found that you were afraid that I would stone you with stones from the heaven!”
Sheikh Abu Ishaq ash-Shirazi said in his book al-Muhaththib: “…and three men witnessed against al-Mugheera; Abu Bakra, Nafi’ and Shibl bin Ma’bad…Ziyad said: “I saw buttocks rising and two legs as if they were two ears of a donkey and I heard loud breathing but I did know what there was behind them.” And then Umar whipped the three witnesses and he did not punish al-Mugheera. The jurisprudents discussed the saying of Ali (may Allah be pleased with him) to Umar “if you whip him, you have to stone your friend”. Abu Nasr bin as-Sabbagh said: “He wanted to say to Umar that if this saying was as another witness then the number of witnesses would be completed (four witnesses) otherwise you have whipped him for his first witness) and Allah is more aware!”
This is the end of Ibn Khillikan’s saying about this tragedy and its concerns. Refer to Wafiyyat al-A’yan, vol.2, biography of Yazeed bin Ziyad al-Himyari.
Al-Hakim mentioned this event in his Mustadrak, vol.3 p.448, biography of al-Mugheera. Ath-Thahabi mentioned it in his Talkhees al-Mustadrak and all the historians, who have mentioned the biographies of al-Mugheera, Abu Bakra, Nafi’ and Shibl bin Ma’bad and the historians, who have recorded the events of the seventeenth year of hijra, mentioned the details of this event.

His severity to Jabala bin al-Abham
Once a delegation of five hundred knights from Akk and Jafna came on their trotting Arab horses wearing garments brocaded with gold and silver and at the head of them was Jabala, who had put on his head his crown on which was the earring of his grandmother Maria. They all became Muslims and the Muslims became too delighted and pleased with them and with their followers who would join them. Jabala and his companions attended the season of hajj with the caliph since their first year of being Muslims.
While Jabala was circumambulating the Kaaba, a man from Fazara trod on his loincloth and untied it. Jabala slapped the man. The man resorted to Umar. Umar ordered Jabala either to let the man slap him or to content the man. Umar was too strict in his order until Jabala became desperate. When the night came, Jabala and his companions left towards Constantinople and they all became Christians unwillingly. They found favor with Hercules and got honor and magnificence above what they wished. 224
In spite of all that, Jabala often cried regretting what he had missed of the religion of Islam. He had composed the following verses of poetry: “The honorables became Christians because of a slap, There would be no harm if you were a little patient!
I was encircled with obstinacy and zeal, And I sold the sound eye for one-eyedness.
Would that my mother had not begotten me!
Would that I had gone back to the people that Umar said!
Would that I grazed cattle in a desert!
Or I was a captive in Rabee’a or Mudhar!”
I said: Would that the caliph had not driven this Arab emir and his people away even if he would have tried every means to content that man of Fazara whether the emir would know or would not know! It was too far that Umar would do such a thing!
Umar wanted to break the pride of Jabala from the first occasion! And this was his wont with every noble and honorable one! This is well known by the men of understanding who have studied his conducts.
You have seen above his severity to Khalid whereas he was from his relatives.
How much difference there was between his two days; his day with his friend al-Mugheera when he cancelled his due punishment for adultery and his day with Khalid when he insisted on stoning him and if Abu Bakr was not there Khalid would have been stoned. The strength and vanity of Khalid led Umar to be too severe to him. The same was with Jabala; the pride and nobility of him led Umar to be very severe to him too unlike al-Mugheera, who was more obedient to Umar than his shadow and who was meaner than his shoes in spite of his cunning and tricking; therefore Umar kept him despite his lewdness.
The policy of Umar required terrifying the citizens by being severe to the honorable and proud people like Jabala and Khalid. He might have terrified the citizens by punishing his close relatives as he had done to his son Abu Shahma and Umm Farwa, Abu Bakr’s sister and he might have done that with those who had no benefit to him whether in politics or other things as he had done to Ja’da as-Salami, Dhabee’ at-Tameemi, Nasr bin Hajjaj, his cousin Abu Thu’ayb, the poor Abu Hurayra and their likes.
He kept to austerity in his food, abode and sumpter. He was patient towards desires and he refrained from pleasures. He was satisfied with subsistence. He spread the booties among the umma openhandedly without preferring himself or his family to the others. He enriched the treasury. He was too strict in punishing his officials…and many things like that which helped him to drive the umma with his stick, to shut up the tongues and to bridle the mouths.
No one of his officials had escaped his punishment save Mo’awiya despite the differences between them. He had never punished Mo’awiya nor had he blamed him for anything. He had left him free doing whatever he liked. He said to him: “I neither order you nor I forbid you.” He, who knew Umar, would know that he had preferred Mo’awiya for something in his mind!

His severity to Abu Hurayra
Umar had appointed Abu Hurayra as the wali of Bahrain in the year twenty-one of hijra. In the year twenty-three he deposed him and appointed Othman bin Abul Aas ath-Thaqafi instead of him. The caliph not only deposed Abu Hurayra but also he saved from him ten thousand dinars for the treasury, alleging that he had stolen them, which they were of the Muslims. It was a famous case.
Ibn Abd Rabbih al-Maliki mentioned (in his book al-Iqd al-Fareed, in the first pages of vol. 1) that the caliph Umar had sent for Abu Hurayra and said to him: “You know well that I had appointed you as the wali of Bahrain and you were barefooted and now it came to my ears that you have bought horses for one thousand and six hundred dinars.” Abu Hurayra said: “We had some horses that bore and gifts that cumulated”. The caliph said: “I counted your livelihood and income and I found that it is over than yours and you have to return it”. Abu Hurayra said: “You cannot do that”. Umar said: “Yes, I can and I will beat you on the back.”
Then Umar got up and beat him with his stick 225 until he wounded him and said to him: “Pay the money back.” Abu Hurayra said: “Exempt me for the sake of Allah.” Umar said: “That would be if it was halal (permissible) and that you paid it back obediently. Have you come from the farthest lap of Bahrain with people’s taxes to be in your pocket, neither for Allah nor for the Muslims? Umayma 226 has begotten you just to graze donkeys.”
Ibn Abd Rabbih mentioned that Abu Hurayra had said: “When Umar deposed me in Bahrain, he said to me: “O enemy of Allah and enemy of His Qur’an, did you steal the wealth of the Muslims?” Abu Hurayra said: “I am not an enemy of Allah or His book, but I am an enemy of your enemies. I did not steal the wealth of the Muslims.” Umar said: “Then how did you get ten thousand dinars?” He said: “We had some horses that bore, gifts that cumulated and shares that multiplied.” Umar took the money from me but when I offered the Fajr (dawn) prayer, I asked Allah to forgive him.”
This tradition was also mentioned by Ibn Abul-Hadeed in his book Sharh Nahjul-Balagha, vol. 3, 227 and was mentioned by Ibn Sa’d in his book at-Tabaqat al-Kubra (Abu Huraya’s biography) 228 narrated by Muhammad bin Seereen that Abu Hurayra had said: “Umar said to me: “O enemy of Allah and enemy of his Qur’an, did you steal the wealth of the Muslims…etc.” Ibn Hajar mentioned this tradition in his book al-Isaba but he modified it and changed the truth in a way dissented from all the others in order to purify the fame of Abu Hurayra. But he forgot that he defamed the man, who had beaten Abu Hurayra on the back, taken his money and deposed him.

His severity to Sa’d bin Abi Waqqas
Umar had appointed Sa’d bin Abu Waqqas as the emir of Kufa and then he had been informed that Sa’d concealed himself in his palace from people. Umar sent for Muhammad bin Maslama and said to him: “Go to Sa’d in Kufa and burn down his palace over him and do not do anything until you come back to me!” Muhammad went to Kufa and set fire to the palace in order to surprise Sa’d. Sa’d came out saying: “What is this?” Muhammad said: “This is the determination of the caliph.” He left it until it was burnt down and then he left to Medina.

His severity to Khalid bin al-Waleed
When Khalid was the emir of Qinnisreen (by Umar), al-Ash’ath bin Qays asked him for some gift. Khalid gifted him with ten thousand (dirhams or dinars). Umar knew about that where nothing of Khalid’s deeds was unknown by Umar. Umar sent for the mailman and he wrote with him to Abu Ubayda, his emir on Hims (in Syria): “Make Khalid stand on one leg, tie the other with his turban and put his cap off in public before the officials of the state and notable people until he tells you where from he has gifted al-Ash’ath. If it is from his own money, this will be wasting and Allah does not like the wasters and if it is from the wealth of the umma, this will be treason and Allah does not like the traitors. Depose him in any case and join his job to yours.”
Abu Ubayda wrote to Khalid and Khalid came to him. Then he gathered the people and he sat on the minbar in the great mosque. The mailman got up and asked Khalid where he had gifted al-Ash’ath from. Khalid did not answer while Abu Ubayda was silent saying nothing. Bilal al-Habashi got up and said: “Ameerul Mo'mineen (Umar) has ordered of so and so…”
He took off Khalid’s turban and cap, made him stand up and tied his leg with his turban and then he asked him: “Wherefrom have you gifted al-Ash’ath? Is it from your money or from the money of the umma?” He said: “From my money.” He set Khalid free and put the cap and the turban on his head again with his hands saying: “We obey our guardians, glorify them and serve them.”
Khalid remained confused. He did not know whether he had been deposed or not because Abu Ubayda did not tell him of that for he respeted him and glorified him. When Khaild’s coming to Umar delayed, he gussed what had happened so he wrote to Khalid: “You are deposed. Withdraw from the emirate!” After that Umar had not entrusted Khalid with any position until he died.

Beating and exiling Dhabee’
One day a man came to Umar and said to him: “O Ameerul Mo'mineen, Dhabee’ at-Tameemi met us and he began asking us about the interpretation of some verses of the Qur'an and he said to me: “O Allah, enable me to overcome him (Umar)!” One day while Umar was sitting during a banquet he had made for people, Dabee’ came wearing good cloths and a turban. He sat eating with people. When he finished eating, he asked Umar: “O Ameerul Mo'mineen, what is the meaning of this saying of Allah: “Weth-thariyat tharwa, wel-hamilat waqra” “I swear by the wind that scatters far and wide, then those clouds bearing the load (of minute things in space” (Qur’an 51:1-2)
Umar said to him: “Woe unto you! It is you!” Umar got up, uncovered his arms and began whipping the man until his turban fell down. He had two plaits of hair. Umar said: “I swear by Him, in Whose hand Umar’s soul is, that if I have seen you with a shaven head, I would have beheaded you.” Then he ordered the man to be imprisoned in a house.
Every day he took him out to whip him one hundred whips. When he became well, Umar took him out to whip him another hundred whips. Then he carried him on a camel and sent him to Basra and wrote to his official there Abu Musa ordering him to forbid people from mixing with him. He ordered Abu Musa to make a speech for people telling them that Dabee’ wanted to obtain knowledge but he went astray. After that Dhabee’ became mean among people until he died whereas he had been the chief of his people before. 229

Exiling Nasr bin Hajjaj
Abdullah bin Burayd said: “One night while Umar was patrolling, he arrived at a house, inside which there was a woman singing for other women: “Is there a way to get some wine to drink, or to be with Nasr bin Hajjaj?”
Umar said: “As long as she lives, she will not get that!” In the morning he sent for Nasr bin Hajjaj. 230 Umar looked at him and found him very handsome. He ordered him to collect his hair.
He did and when his forehead appeared he became more handsome. Umar asked him to put on a turban. He put on a turban and then his plentiful hair appeared from under the turban and he seemed more handsome. Umar asked him to cut his hair. He cut his hair and he seemed too handsome. Then Umar said to him: “O bin Hajjaj, you have charmed the women of Medina. Do not neighbor me in a town I live in!” Then Umar exiled him to Basra. After spending some days in Basra, Nasr sent a letter to Umar having some verses of poetry, in which he had showed his innocence and asked Umar to let him go back to his house.
Umar said: “Certainly not, as long as I am the ruler!” When Umar was killed, Nasr rode his sumpter and joined his family in Medina.

Exceeding the legal penalty with his son
Once Umar’s son Abdurrahman, surnamed as Abu Shahma, drank wine in Egypt when Amr bin al-Aas was the wali there. The wali Amr bin al-Aas ordered Abu Shahma’s hair to be cut and then he was whipped according to the legal penalty at the presence of his brother Abdullah bin Umar. When Umar was informed of that, he wrote to Amr bin al-Aas to send him Abu Shahma in aba and on a camel without a saddle. He stressed on that and ordered him with severe words.
Amr bin al-Aas sent Abu Shahma in the condition as Umar had ordered and wrote to Umar that he had punished Abu Shahma with the legal penalty; cutting his hair and whipping him in the courtyard and he swore by Allah that it was the place, in which the legal penalties were executed on the Muslims and (ahlul thimma) the Christians and the Jews. He sent the book with Abdullah bin Umar (Umar’s son).
Abdullah bin Umar brought the book and his brother Abdurrahman and came to his father in Medina while Abdurrahman was putting on an aba and was unable to walk because he was ill and tired of sitting on the bare back of the camel all the way from Egypt to Medina. Umar became too severe with his son. He said to him: “O Abdurrahman, have you done this and that?” Then he cried: “Bring me the whips!”
Abdurrahman bin Ouff interceded with Umar saying to him: “O Ameerul Mo'mineen, he has been punished with the legal penalty and his brother Abdullah has witnessed that.” But Umar paid no attention to him rather he rebuked him. Umar began whipping his son Abdurrahman (Abu Shahma), who was shouting at his father: “I am ill and you are going to kill me!” Umar did never pity him and gave a deaf ear to his son’s crying until he finished the number of the legal whips. After that he imprisoned him and a month later Abdurrahman died. 231
If Amr bin al-Aas was trusted in the affairs of the Muslims (the legal penalties) and he was reliable near Umar, then he told Umar that he had punished Abu Shahma at the presence of his brother Abdullah, who was the most trusted one to his father from among the family of al-Khattab; hence Umar had no any evidence to punish his son again and if Amr bin al-Aas was not trustworthy and he was not truthful in his swear, then how had Umar appointed him as the wali of Egypt to execute the verdicts and penalties of Allah and how had he entrusted him with the bloods , honors and properties of the people?
According to the Shari’ah a sick person is not to be punished before recovering health and the punished one (with legal penalty) is not to be imprisoned especially if he is ill or that imprisonment may harm him but Umar was fond of preferring his own opinions to the legal verdicts.
Notes:
223. Not Abu Bakr.
224. Al-Iqd al-Fareed by Ibn Abd Rabbih al-Andalusi, vol.1 p.187, Arabic Lessons for secondary schools, vol.1 p.62 edition of al-Kashshaf Press, Beirut, quoted from al-Aghani by Abul Faraj al-Isfahani.
225. A dry bunch of dates he was used to hold in his hand.
226. Umayma was Abu Hurayra’s mother. This word of the caliph was among the worst words of abuse.
227. P.104, edition of Egypt.
228. Vol.4, p.90.
229. Sharh Nahjul Balagha, vol. 3 p.122.
230. He was Nasr bin Hajjaj bin Alabit al-Bahzi as-Salami.
231. This was one of the famous events in the history of Umar. It has been mentioned by the most of the historians. Refer to Sharh Nahjul Balagha, vol. 3 p. 123. Ibn Abul Hadeed mentioned in the same volume of his book that Umar had whipped one of his sons for drinking wine until he died. All the historians, who have talked about Abu Shahma, mentioned this case such as Ibn Abdul Birr in his Istee’ab, ad-Dimyari in Hayat al-Haywan and Ibn al-Jawzi in his book Tareekh Umar, chap.77.

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