Rape is the kind of added nuisance for men, which is equivalent to prostitution for women. That brings me to another unpleasant subject, which I wanted to avoid but I have to bring it up now, because all of us must now where you are coming from and where I am coming from.
Is rape a bigger crime than adultery with consent? Every sane person without religious bias will say, yes. Then let me ask you, what is the islamic punishment for old man of age 40, who rapes a 14 years old girl? I don't want to make it more unpleasant by asking about a 9 years old girl. What will be his punishment, when he is, say 70 and unmarried?
I am just wondering, that a serious student of knowledge like yourself does not know, that it was a clear case of rape. Had he brought himself to the Prophet and told everything to the Prophet about his crime? By one account yes. But the riwayah of Ibn Abbas in Muslim tells, that the Prophet was well aware of his crime, when he was brought before him:
ان النبی صلی اللّٰہ علیہ وسلم قال لماعز بن مالک: أحق ما بلغنی عنک؟ قال: وما بلغک عنی. قال : بلغنی انک وقعت بجاریۃ آل فلان، قال: نعم، قال: فشھد اربع شھادات، ثم امر بہ فرجم.(مسلم ، رقم ۴۴۲۷)
Also the name of the woman, with whom he committed his crime is known to be muheera. There is no hadith available about her punishment. On the contrary, a riwayah of ibn Sa'ad tells us, that the Prophet called upon her but never punished her.
دعا رسول اللّٰہ صلی اللّٰہ علیہ وسلم المرأۃ التی اصابھا فقال: اذہبی ولم یسألھا عن شی ء. (الطبقات الکبریٰ ۳/۲۲۹)
What is your guess about a case, where a man is stoned to the death and the woman does not get any punishment? What else is that, if not rape?
Again testifying against oneself, when she was already pregnant, does not bail her out a lot. Like I said earlier, it is the case, where "people" are talking about several encounters of her and the Prophet and it is almost impossible, that a rawi was present in all the encounters. Also the reports are conflicting. In one riwayah, she was stoned directly after the birth of the child, because a sahabi took the responsibility of her child.
قالت : انھا حبلی من الزنیٰ فقال: آنت؟ قالت: نعم، فقال لھا: حتی تضعی ما فی بطنک. قال: فکفلھا رجل من الانصارحتی وضعت، قال: فاتی النبی صلی اللّٰہ علیہ وسلم فقال: قد وضعت الغامدیۃ، فقال: اذاً لا نرجمھا وندع ولدھا صغیرًا لیس لہ من یرضعہ فقام رجل من الانصار فقال: الیّ رضاعہ یا نبی اللّٰہ، قال: فرجمھا. (مسلم، رقم۴۴۳۱)
Secondly, there is no explicit mention in any hadith, that she was married. Nobody knows the name of her husband. She was never accompanied by any of relatives or people of her tribe. Even affter confession, she was kept by an ansari. There are no signs of her being a family woman. Instead, everything available about her points out, that after bay'ah with the Prophet, she did not stop herself from adultery and she had to confess it before the Prophet after getting pregnant.
Also she was never asked about the man she was involved with. Is this really the islamic law, that we should never ask about the father of the child, when a pregnant adulterer is to be punished? That she did the true taubah and was praised for that by the Prophet, I have no doubt about that. Because I do not believe, that the door of taubah is closed for prostitutes. So, that argument does not count. Now again, if you honestly analyse the whole situation, you will get more evidence to prove my point than yours.
Again, that would be a gross misrepresentation of Quran, if you think it is saying, let the terrorist or robber go scot-free, if he himself comes to you in confession. Correct interpretation in its true spirit would be, don't punish them for fasad fil ard but as normal criminals. So a terrorist would be punished for murders, a robber would be punished as a thief and a rapist would be punished for adultery only. Do you know a better interpretation?
As for the given examples, I have already given my opinion about them. Confession, when people would know anyways, is like getting caught.
I would respect that, if a real not-scholar-worshipper comes to the conclusion, that his thoughts are baseless. As for myself, I have been appealing your honesty in your analysis all the while, by which you should conclude, that I really honestly think, his interpretation is truely representing Quran and Sunnah. You would not believe it, but there are certain things, which I do not take from him.
Wassalamu alaikum
wa'aleylumas'salaam warahmatul'Lahi wabarakatuh, brother...
This may take me longer time and space than anticipated but in shaa Allah, I hope you be connected in this lengthy post...
First of all, I never claimed I'm student of knowledge, and whatever we lack of knowledge(as we'll come to know you too are guilt of) let's not be surprised of each other!
My claim that "mai'z was not guilt of fasaad fil ardh ,in that case, of rape" is based on many lenghty hadiths, I will write one and take the references of others...
Narrated Sulaiman b. Buraida reported on the authority of his father that Ma, iz b. Malik came to Allah's Apostle (may peace be upon him) and said to him: Messenger of Allah, purify me, whereupon he said: Woe be upon you, go back, ask forgiveness of Allah and turn to Him in repentance. He (the narrator) said that he went back not far, then came and said: Allah's Messenger, purify me. whereupon Allah's Messenger (may peace be upon him) said: Woe be upon you, go back and ask forgiveness of Allah and turn to Him in repentance. He (the narrator) said that he went back not far, when he came and said: Allah's Messenger, purify me. Allah's Apostle (may peace be upon him) said as he had said before. When it was the fourth time, Allah's Messenger (may, peace be upon him) said: From what am I to purify you? He said: From adultery, Allah's Messenger (may peace be upon him) asked if he had been mad. He was informed that he was not mad. He said: Has he drunk wine? A person stood up and smelt his breath but noticed no smell of wine. Thereupon Allah's Messenger (may peace be upon him) said: Have you committed adultery? He said: Yes. He made pronouncement about him and he was stoned to death...(until end of hadith).
Other similar Ahadith: ( Sahiih muslim. kitaabul hudud 4205)... (sahiih muslims 17: 4196,4198,4199,4201,4202)... (sunan Abu Daud 4425,4426,4427,4430)... ( Sahiih Al-bukhari 4969)... All these hadiths of some different chains speak of a sincere repenting man who is in no form of endangering the honour of women!
You have made many claims, which can be said by lack of further reading... i) How does Imam shafii differ with my opinion? (Which opinion though :/ the one about that particular hadith being regarded as mansookh?) ... Imam shafii is actually the one who upholds the opinion that the hadith is mansookh and by that he argues the punishment for married adulterer is Rajm only without the 100 lashes as learnt in the Sunnah... so I don't know what that was!
ii) you claim that it was a clear case of rape, based on what? That the lady was not punished? Do you know of the ruling if the man confesses and the woman does not and he cannot provide evidence? Consider this hadith...
Narrated Sahl ibn Sa'd:
A man came to the Prophet (ﷺ) and made acknowledgment before him that he had committed fornication with a woman whom he named. The Messenger of Allah (ﷺ) sent someone to the woman and he asked her about it. She denied that she had committed fornication. So he gave him the prescribed punishment of lashes and left her". (sunan Abu Daud 4466) ... so did she or did she not confess too? And other such questions which ultimately does not change his fate maybe derived from that argument...
ii) and about Mai'z being married and actually an orphan, I think you know it by now.
The evidence that argues your view is just too numerous, and it is more likely that even if I exhaust all the lierature written against it, you'll still be up for a never ending "pull me I pull you" discussion so let's leave our corners and meet somewhere in the middle...
ASSUME that for Mai'z it was a case of rape, and the ghamidyah a case of prostitution(and by no means am I associating that to them, just for the sake of argument) were they punished for Fasaad fil ardh? They were not spreading mischief(when they were apprehended ,for the sake of argument) in fact, they were sincere repentants and as you've rightly pointed out,such a person who spreads mischief in the land but repents before apprehention will be punished even though not for 'fasaad fil ardh' but for the crimes they committed... so let's take the case of Mai'z, he was spreading mischief in the land righ?, but desisted from it and sought repentance and so he could only be punished for his crime,adultery and not for previously spreading mischief. But why was he stoned when you believe the punishment for adultery is 100 lashes? ... of course, he was married according to (Al-Bhukhari 4969) (Muslim 17:4196) (Abu Daud 4430)... So unless the penalty for married adulterer is stoning to death even that theory of 'fasaad fil ardh' fails to make any sense... This is for you to consider according to the theory you uphold...
Besides using analysis and the question " what could or not have been", the enormity of authentic texts that speak of this matter ' Rajm for married adulterers' is also something to consider... for instance now, how do you negate the following saheeh Ahadith or harmonize them to your theory? ...
(i)
Volume 9, Book 83, Number 17:
Narrated 'Abdullah:
Allah's Apostle said, "The blood of a Muslim who confesses that none has the right to be worshipped but Allah and that I am His Apostle, cannot be shed except in three cases: In Qisas for murder, a married person who commits illegal sexual intercourse and the one who reverts from Islam (apostate) and leaves the Muslims."
(ii)
Narrated Al-Lajlaj al-Amiri:
"I was working in the market. A woman passed carrying a child. The people rushed towards her, and I also rushed along with them.
I then went to the Prophet (ﷺ) while he was asking: Who is the father of this (child) who is with you? She remained silent.
A young man by her side said: I am his father, Messenger of Allah!
He then turned towards her and asked: Who is the father of this child with you?
The young man said: I am his father, Messenger of Allah! The Messenger of Allah (ﷺ) then looked at some of those who were around him and asked them about him. They said: We only know good (about him).
The Prophet (ﷺ) said to him: Are you married? He said: Yes. So he gave orders regarding him and he was stoned to death.
He (the narrator) said: We took him out, dug a pit for him and put him in it. We then threw stones at him until he died. A man then came asking about the man who was stoned.
We brought him to the Prophet (ﷺ) and said: This man has come asking about the wicked man.
The Messenger of Allah (ﷺ) said: He is more agreeable than the fragrance of musk in the eyes of Allah. The man was his father. We then helped him in washing, shrouding and burying him. (The narrator said
I do not know whether he said or did not say "in praying over him." This is the tradition of Abdah, and it is more accurate". (Sunan Abu Daud 4435)
(iii)
Abu Hurairah and Zaid b. Khalid al-Juhani said:
"Two men brought a dispute before the Messenger of Allah (ﷺ). One of them said: Pronounce judgement between us in accordance with Allah’s Book, Messenger of Allah! The other who had more understanding said: Yes, Messenger of Allah! Pronounce judgement between us in accordance with Allah’s Book, and allow me to speak. He (the Prophet) said: Speak, He then said: My son who was a hired servant with this(man) committed fornication with his wife, and when I was told that my son must be stoned to death, I ransomed him with a hundred sheep and a slave girl of mine; but when I asked the learned, they told me that my son should receive a hundred lashes and be banished for a year, and that stoning to death applied only to man’s wife. The apostle of Allah (ﷺ) replied: By him in whose hand my soul is, I shall certainly pronounce judgment between you in accordance with Allah’s Book. Your sheep and your slave girl must be returned to you, and your son shall receive a hundred lashes and be banished for a year. And he commanded Unias al-Aslami go to that man’s wife, and if she confessed, he should stone her to death. She confessed and he stoned her..."( sunnan Abu Daud 4445)
(iv)
Abu Hurairah reported the Prophet (ﷺ) as saying:
When the slave-woman of any of you commits fornication, he should inflict the prescribed punishment on her, but not hurl reproaches at her. This is to be done up to three times. If she a fourth time, he should flog her, and sell her even if only for a rope of hair."( sunan Abu Daud 4455)... Note: this hadith speaks of repeating action but same punishment until the fourth time and there is no stoning even then because she isn't married.. so there is an objection here about "persistence in the evil act" and to whom this stoning applies even if you use your theory.