Documentation and Evidence

Documentation and Evidence


يا أَيُّهَا الَّذِينَ آمَنُوا إِذَا تَدَايَنتُمْ بِدَيْنٍ إِلَى أَجَلٍ مُسَمًّى فَاكْتُبُوهُ وَلْيَكْتُبْ بَيْنَكُمْ كَاتِبٌ بِالْعَدْلِ وَلَا يَأْبَ كَاتِبٌ أَنْ يَكْتُبَ كَمَا عَلَّمَهُ اللَّهُ فَلْيَكْتُبْ وَلْيُمْلِلْ الَّذِي عَلَيْهِ الْحَقُّ وَلْيَتَّقِ اللَّهَ رَبَّهُ وَلَا يَبْخَسْ مِنْهُ شَيْئًا فَإِنْ كَانَ الَّذِي عَلَيْهِ الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَنْ يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّنْ تَرْضَوْنَ مِنْ الشُّهَدَاءِ أَنْ تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الْأُخْرَى وَلَا يَأْبَ الشُّهَدَاءُ إِذَا مَا دُعُوا وَلَا تَسْأَمُوا أَنْ تَكْتُبُوهُ صَغِيرًا أَوْ كَبِيرًا إِلَى أَجَلِهِ ذَلِكُمْ أَقْسَطُ عِنْدَ اللَّهِ وَأَقْوَمُ لِلشَّهَادَةِ وَأَدْنَى أَلَّا تَرْتَابُوا إِلَّا أَنْ تَكُونَ تِجَارَةً حَاضِرَةً تُدِيرُونَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلَّا تَكْتُبُوهَا وَأَشْهِدُوا إِذَا تَبَايَعْتُمْ وَلَا يُضَارَّ كَاتِبٌ وَلَا شَهِيدٌ وَإِنْ تَفْعَلُوا فَإِنَّهُ فُسُوقٌ بِكُمْ وَاتَّقُوا اللَّهَ وَيُعَلِّمُكُمْ اللَّهُ وَاللَّهُ بِكُلِّ شَيْءٍ عَلِيمٌ وَإِن كُنتُمْ عَلَى سَفَرٍ وَلَمْ تَجِدُواْ كَاتِبًا فَرِهَانٌ مَّقْبُوضَةٌ فَإِنْ أَمِنَ بَعْضُكُم بَعْضًا فَلْيُؤَدِّ الَّذِي اؤْتُمِنَ أَمَانَتَهُ وَلْيَتَّقِ اللّهَ رَبَّهُ وَلاَ تَكْتُمُواْ الشَّهَادَةَ وَمَن يَكْتُمْهَا فَإِنَّهُ آثِمٌ قَلْبُهُ وَاللّهُ بِمَا تَعْمَلُونَ عَلِيمٌ (282:2-283) O you who believe! When you acquire a loan for a fixed period, record it in writing, and let a scribe write it down between you with fairness; he who can write should not refuse to write, and just as Allah has taught him to write, he also should write for others; the one who has acquired the loan should have [the document] written down and fearing Allah his Lord, he should not make any reduction in it. If he on whom rests the responsibility of writing is indiscreet or feeble or unable to have it written, then let his guardian do so with justice. And call in two male witnesses from among your men, but if two men cannot be found, then one man and two women from among your likable people so that if one of them gets confused, the other reminds her. And witnesses must not refuse when they are summoned. And whether the loan is big or small, be not negligent in documenting the deal up to its period. This is more just in the sight of Allah, it ensures accuracy in testifying and is the most appropriate way for you to safeguard against doubts. But if it be an everyday transaction, it does not matter if you do not write it down. And call in witnesses also if you sell or purchase anything. And let no harm be done to the scribe or the witness. If you do so, then this will be a transgression which will cling to you. And fear Allah. Allah is teaching you. He has knowledge of all things. If you are in a journey and a scribe is not available, a loan can be taken by placing something in possession of the lender against the loan. Then when circumstances are such that people can trust one another, the lender should return the thing entrusted to him and he should keep fearing Allah his Lord [and should call in people to bear evidence on this matter], and do not conceal evidence [in whatever form it is], and [remember that] whoever conceals it his heart will become sinful, [and remember that] God knows whatever you do. (2:282-283) This verse directs the Muslims to document monetary transactions whether in cash or in credit to safeguard against any dispute that may arise. Imām Amīn Ahsan Islāhī# has summarized the directives mentioned in this verse in his Tadabbur-i Qur'ān in the following words:

  • 1. Whenever a loan is acquired for a certain period, the transaction should be written down in the form of a document.
  • 2. This document should be written down in a just manner by some scribe in the presence of both the parties. He should not be fraudulent in writing this down. A person who knows how to write should not refuse if he is called upon to do so. The skill of writing is a blessing of Allah, and, in gratitude to this, a person should help others whenever the need arises. The need for this piece of advice arose because in those times very few people knew how to write. Formal and legal documentation and registration had not begun and neither was its inception an easy affair.
  • 3. The responsibility of writing down the document rests on the borrower. The document should state the name of the person from whom he has borrowed, and like the person who has been entrusted with the responsibility of writing down, he too should uphold the virtue of piety in this affair, and in no way try to damage the parties involved.
  • 4. If the borrower is naïve, feeble or is not in a position to write down the document, then his guardian or attorney should have it written down on his behalf with justice and fairness.
  • 5. Two male witnesses should testify over this document. The words used are مِنْ رِجَالِكُمْ (from among your men), which imply two things simultaneously: firstly, the witnesses should be Muslims and known to the parties involved. The second thing which is specified in this regard is that the witnesses should be honest and trustworthy and of sound character.
  • 6. If two male Muslims having the said qualities are not available, then one man and two women can be selected to fulfill this responsibility. The requirement for two women is because if one of them commits an error the other may correct her. This is not because women are inferior, but because this responsibility is not very suited to their temperament and general sphere of interests and the environment they are used to. Consequently, the sharī'ah has given them some relief and assistance in it. This topic is discussed in detail in Sūrah Nisā.
  • 7. People who have borne witness to a document should not desist from giving their testimony when they are called upon to do so because bearing witness to a truth is a great social service also, and as witnesses to the truth, it is a responsibility of the ummah imposed on it by the Qur'ān.
  • 8. If the loan, whether it be small in amount or large, is acquired for a period and is not an everyday loan, one must not show aversion to writing it down. People who ignore this by considering it a burden, sometimes get involved in severe disputes which produce far reaching results merely because of this slackness.
  • 9. All these directives are in accordance with justice, and they safeguard testimonies and protect people from doubts and disputes. So it is necessary to follow them for the general well-being of the society.
  • 10. Everyday loans and transactions are not required to be written down.
  • 11. Witnesses, however, should be called upon important deals and transactions to resolve any disputes that may arise.
  • 12. It is not proper for a party to harm the scribe or the witness if a dispute arises. Scribes and witnesses do a great social service, and if they are harmed, honest and cautious people will start avoiding these responsibilities and, except for professional witnesses, people will have difficulty in finding witnesses who are reliable. In present times, the reason honest and serious minded people avoid these responsibilities is that whenever some dispute arises in such an affair, the witnesses have to face a lot of trouble and discomfort. They become the targets of defamation, suffer monetary losses and even get killed. The Qur'ān has stopped people from such excesses and warned that this is not a small offence that may be forgiven. It is a transgression which will cling on to them, and they will not be able to save themselves from its evil consequences. This is nothing but an effort to raze down the foundation of the pillar of bearing witness to the truth – the very objective of this ummah.
  • At the end of the verse, the Almighty has given His guidance on the issue of pledging something to acquire a loan. As per this guidance, if a person is on a journey and no scribe is available to document the transaction of loan then the borrower can place something in possession of the lender as a security. However, this permission to the lender to accept such pledges is strictly dependent on the fact that the lender does not find himself in a trustworthy situation. As soon such a situation arises, the Almighty has directed the lender to return the pledged item and call in witnesses over the transaction of loan. Imām Amīn Ahsan Islāhī writes: When circumstances arise that people can start trusting one another and the lender does not have a valid reason to distrust the borrower, he should return the pledged item and if he wants, for his own satisfaction, he can adopt the method on which he has been guided earlier in the verse. Examples of these circumstances are that his journey ends, scribes become available to document the transaction and in the presence of people known to him the loan becomes a verifiable transaction. Here the pledged items are called "a trust" from which it is evident that these items lie with the lender as a trust which he must safeguard, and it is prohibited to gain any benefit from them. The nature of calling in two male witnesses and, in their absence, one male and two female witnesses though is absolutely specific; however, the way our jurists have interpreted it requires that the following two aspects be kept in consideration: Firstly, the verse has nothing to do with the bearing of witness over an incident. It explicitly relates to testifying over a document. It is very evident that in the second case witnesses are selected by an external agency, while in the first case the presence of a witness at the site of an incidence is an accidental affair. If we have written a document or signed an agreement, then the selection of witnesses rests upon our discretion, while in the case of adultery, theft, robbery and other similar crimes whoever is present at the site must be regarded as a witness. The difference between the two cases is so pronounced that no law about one can be deduced on the basis of the other. Secondly, the context and style of the verse is such that it cannot relate to law or the judicial forums of a state. It is not that after addressing a court of law that it has been said that if such a law suit is presented before them by a claimant, then they should call in witnesses in this prescribed manner. On the contrary, this verse directly addresses people who borrow and lend money over a fixed period. It urges them that if they are involved in such dealings, then an agreement between the two parties must be written down, and to avoid disputes and financial losses only witnesses who are honest, reliable and morally sound should be appointed. At the same time, their personal involvement and occupations should be suited to fulfill this responsibility in a befitting manner. Precisely for this reason, Muslims are directed to primarily appoint two male witnesses and in their absence one male and two female witnesses so that if a lady used to the serene surroundings of her house finds herself overwhelmed in the hostile atmosphere of a court room, another lady is present alongside her to protect the evidence from doubt and ambiguity. The verse does not mean and should not be taken to mean that a law-suit will only stand proven in court if at least two men or one man and two women bear witness to it. It is merely a guidance for the general masses in their social affairs and counsels them to abide by it so that any dispute can be avoided. It is for their own benefit and welfare that this procedure should be undertaken. In no way should this bearing of witness be taken to mean that it is a statutory count for a testimony which a court must follow. Consequently, about all similar directives the Almighty says that this procedure is nearer to justice, protects the testimony and safeguards people from doubts. II يَاأَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمْ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ ذَوَا عَدْلٍ مِنْكُمْ أَوْ آخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنْتُمْ ضَرَبْتُمْ فِي الْأَرْضِ فَأَصَابَتْكُمْ مُصِيبَةُ الْمَوْتِ تَحْبِسُونَهُمَا مِنْ بَعْدِ الصَّلَاةِ فَيُقْسِمَانِ بِاللَّهِ إِنْ ارْتَبْتُمْ لَا نَشْتَرِي بِهِ ثَمَنًا وَلَوْ كَانَ ذَا قُرْبَى وَلَا نَكْتُمُ شَهَادَةَ اللَّهِ إِنَّا إِذًا لَمِنْ الْآثِمِينَ فَإِنْ عُثِرَ عَلَى أَنَّهُمَا اسْتَحَقَّا إِثْمًا فَآخَرَانِ يَقُومَانِ مَقَامَهُمَا مِنْ الَّذِينَ اسْتَحَقَّ عَلَيْهِمْ الْأَوْلَيَانِ فَيُقْسِمَانِ بِاللَّهِ لَشَهَادَتُنَا أَحَقُّ مِنْ شَهَادَتِهِمَا وَمَا اعْتَدَيْنَا إِنَّا إِذًا لَمِنْ الظَّالِمِينَ ذَلِكَ أَدْنَى أَنْ يَأْتُوا بِالشَّهَادَةِ عَلَى وَجْهِهَا أَوْ يَخَافُوا أَنْ تُرَدَّ أَيْمَانٌ بَعْدَ أَيْمَانِهِمْ وَاتَّقُوا اللَّهَ وَاسْمَعُوا وَاللَّهُ لَا يَهْدِي الْقَوْمَ الْفَاسِقِينَ (5 :106-8) Believers! When death approaches someone among you, and he is making a bequest, the testimony will take place in a way that two just men from among you will act as witnesses, or if you are traveling and the calamity of death overtakes you, then two just men from outside you should discharge this responsibility. Detain them [ – the two just Muslims –] after the prayer, and then if you have any doubts, they should swear by Allah: "We will not accept any price for this testimony even if some kinsman offers it, neither will we hide this testimony of Allah. If we do this, then we would be among the sinners". But if it becomes known that they have proved dishonest, then let two others stand forth in their places from among the people who have been deprived of their right by these two witnesses; then they should swear by Allah, saying: Our testimony is truer than theirs and that we have not trespassed [beyond the truth] in our testimony. If we do this, then we indeed should be among the wrongdoers. In this way, it is more likely that they will bear true witness or at least they will fear that their testimony may get refuted by that of the others. [Do this], and fear Allah and listen and [remember that] Allah never guides the evil-doers. (5:106-8) In these verses, believers are directed about their wills and bequests with the same stress and emphasis as they are in matters of loan and other transactions. A summary of these directives is presented below:
  • 1. If death stares a person in his face and he has to make a will regarding his wealth, then he should call in two just witnesses from among his Muslim brethren.
  • 2. If death approaches him during a journey, and two Muslim witnesses are not available there, then as a last resort he can call in two non-Muslim witnesses.
  • 3. If there is a possibility that those selected from among the Muslims as witnesses might show some bias to someone by altering their testimony, then as a precautionary measure, they can be held back after a congregational prayer in the mosque and be asked to swear by Allah that they will not alter their testimony for some worldly gain or in partiality of someone even if he be their close relative, and, if they do some alteration, then they will be sinners.
  • 4. The witnesses should know that this testimony is شهادة الله (the testimony of Allah). So even if they are dishonest in the slightest way, it would mean that they are dishonest not only to their brethren but also to the Almighty.
  • 5. In spite of this, if it comes to surface that these witnesses have shown bias to someone contrary to the will made by the deceased, then two people from among the brethren of the person who has become the victim of this injustice should stand up and swear that they are truer than the previous witnesses; that they have not committed any excess in this regard and that they will be wrongdoers before the eyes of Allah if they do so.
  • 6. It is likely that after this further measure, the witnesses will not give a false testimony for they will have the fear hovering over them that if they commit any wrong, others will negate their oaths and in spite of being given preference, their oaths will be refuted.



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