The Law of Evidence

The Law of Evidence


Since the Qur'an has in no way bound the Muslims to adopt a particular method in proving a crime, it is absolutely certain that a crime stands proven in Islamic law just as it is in accordance with the universally acceptable methods of legal ethics endorsed by sense and reason. Consequently, if circumstantial evidence, medical check-ups, post mortem reports, finger prints, testimony of witnesses, confession of criminals, oaths and various other methods are employed to ascertain a crime, then this would be perfectly acceptable by Islamic law.

It is to this fact that the following words of the Prophet (sws) allude to:

الْبَيِّنَةُ عَلَي الْمُدَّعِي وَالْيَمِينُ عَلَي الْمُدَّعَي عَلَيْهِ

To substantiate a crime is the claimant's responsibility, and the person who refutes it will have to swear an oath.[1]

In the words of Ibn Qayyim:

البينة في كلام الله و رسوله و كلام الصحابة اسم لكل ما يبين الحق فهي اعم من البينة في اصطلاح الفقهاء حيث خصوها بالشاهدين أو الشاهد واليمين

The word bayyinah in the language of the Qur'an, the Prophet (sws) and his Companions is the name of everything by which the truth becomes evident. Hence contrary to its connotations in the terminology of the jurists, it has a wider meaning because they only use it for two witnesses or an oath and a witness.[2]

However, there are two exceptions to this:

Firstly, if a person accuses a chaste and righteous man or woman having a sound reputation of fornication. In this case, the Qur'an stresses that the accuser shall have to produce four eye-witnesses. Anything less than this will not prove his accusation. Circumstantial evidence or medical examination in this case is absolutely of no importance. If a person is of lewd character, such things have a very important role, but if he has a morally sound reputation, Islam wants that even if he has faltered, his crime should be concealed and he should not be disgraced in the society. Consequently, in this case, it wants four eye-witnesses to testify and if the accuser fails to produce them, it regards him as guilty of qadhf. The Qur'an says:

وَ الَّذِیۡنَ یَرۡمُوۡنَ الۡمُحۡصَنٰتِ ثُمَّ لَمۡ یَاۡتُوۡا بِاَرۡبَعَۃِ شُہَدَآءَ فَاجۡلِدُوۡہُمۡ ثَمٰنِیۡنَ جَلۡدَۃً وَّ لَا تَقۡبَلُوۡا لَہُمۡ شَہَادَۃً اَبَدًا ۚ وَ اُولٰٓئِکَ ہُمُ الۡفٰسِقُوۡنَ.اِلَّا الَّذِیۡنَ تَابُوۡا مِنۡۢ بَعۡدِ ذٰلِکَ وَ اَصۡلَحُوۡا ۚ فَاِنَّ اللّٰہَ غَفُوۡرٌ رَّحِیۡمٌ.(24 :4-5)

Upon those who accuse honourable women [of fornication] and bring not four witnesses as evidence [for their accusation], inflict eighty lashes, and never accept their testimony in future. They indeed are transgressors. But those who repent and mend their ways, Godis Most-Forgiving and Ever-Merciful. (24:4-5)

Secondly, to purge an Islamic state from prostitutes who, in spite of being Muslims, do not give up their life of sin, the only thing required, according to the Qur'an, is that four witnesses who are in a position to testify that a particular woman is a prostitute by profession should be called forth. In this case, it is not necessary at all that they be eye-witnesses. If they testify with full responsibility that she is known as a prostitute in the society and the court is satisfied with their testimony, then they can be given any of the punishments fixed by the Qur'an for habitual criminals. The Qur'an says:

وَ الّٰتِیۡیَاۡتِیۡنَ الۡفَاحِشَۃَمِنۡنِّسَآئِکُمۡ فَاسۡتَشۡہِدُوۡا عَلَیۡہِنَّ اَرۡبَعَۃًمِّنۡکُمۡۚفَاِنۡشَہِدُوۡا فَاَمۡسِکُوۡ ہُنَّ فِی الۡبُیُوۡتِ حَتّٰی یَتَوَفّٰہُنَّ الۡمَوۡتُ اَوۡ یَجۡعَلَ اللّٰہُ لَہُنَّ سَبِیۡلًا.(15:4)

And upon those of your women[3]who commit fornication, call in four people from among yourselves to testify over them; if they testify [to their ill-ways], confine them to their homes till death overtakes them or God formulates another way for them. (4:15)

Barring these two exceptions, the shari'ah does not in any way bind the court to follow any prescribed procedure to ascertain a crime. Consequently, in cases of hudud punishments or in those of evidence in any other crime, in the view of this writer, it has been left to the discretion of the judge whether he accepts someone as witness or not. In this regard, there is to be no discrimination between men and women. If a woman testifies in a clear and definite manner, her testimony cannot be turned down simply on the basis that there is not another woman and a man to testify alongside her. Likewise, if a man records an ambiguous and vague statement, it cannot be accepted merely on the grounds that he is a man. If a court is satisfied by the statements of witnesses and by any circumstantial evidence, it has all the authority to pronounce a case as proven and if it is not satisfied, it has all the authority to reject it even if ten men have testified.

Except in cases where the Qur'an has used the words منكم(minkum: from among you) as in 4:15 above, similar is the case with the testimony of non-Muslims: it is left to the discretion of a judge.

Here it should remain clear that our jurists hold a different view in this matter. Ibn Rushdhas summed up the opinions of the jurists on this issue in his celebrated treatise Bidayah al-Mujtahid in the following words:

واتفقوا علي انه تثبت الأموال بشاهد عدل ذكر و امرأتين لقوله تعالي : فرجل وامرأتان ممن ترضون من الشهداء واختلفوا في قبولهما في الحدود فالذي عليه الجمهور انه لاتقبل شهادة النساء في الحدود لامع رجل ولا مفردات وقال أهل الظاهر : تقبل إذا كان معهن رجل وكان النساء اكثر من واحدة في كل شيء علي ظاهر الآية وقال ابوحنيفه : تقبل في الأموال وفيما عدا الحدود من أحكام الأبدان مثل الطلاق والرجعة والنكاح والعتق ولا تقبل عند مالك في حكم من أحكام البدن واختلف أصحاب مالك في قبولهن في حقوق الأبدان المتعلقة بالمال مثل الوكالات والوصية التي لا تتعلق الا بالمال فقط فقال مالك وابن القاسم وابن وهب : يقبل فيه شاهد وامرأتان وقال أشهب وابن الماجشون : لا يقبل فيه الا رجلان واما شهادة النساء مفردات اعني النساء دون الرجال فهي مقبولة عند الجمهور في حقوق الأبدان التي لا يطلع عليها الرجال غالبًا مثل الولادة والاستهلال وعيوب النساء

There is a general consensus among the jurists that in financial transactions a case stands proven by the testimony of a just man and two women on the basis of the verse: "If two men cannot be found, then one man and two women from among those whom you deem appropriate as witnesses." However; in cases of hudud, there is a difference of opinion among our jurists. The majority say that in these affairs the testimony of women is in no way acceptable whether they testify alongside a male witness or do so alone. The Ẓahiris on the contrary maintain that if they are more than one and are accompanied by a male witness, then owing to the apparent meaning of the verse their testimony will be acceptable in all affairs. Imam Abu Hanifahis of the opinion that except in cases of hudud and in financial transactions their testimony is acceptable in bodily affairs like divorce, marriage, slave-emancipation and raju' [restitution of conjugal rights]. Imam Malik is of the view that their testimony is not acceptable in bodily affairs. There is however a difference of opinion among the companions of ImamMalik regarding bodily affairs which relate to wealth like advocacy and will-testaments which do not specifically relate to wealth. Consequently, Ash-hab and Ibn Majishun accept two male witnesses only in these affairs, while to Malik Ibn Qasim and Ibn Wahab two female and a male witness are acceptable. As far as the matter of women as sole witnesses is concerned, the majority accept it only in bodily affairs, about which men can have no information in ordinary circumstances like the physical handicaps of women and the crying of a baby at birth.[4]

The jurists have based their view upon the following verse of the Qur'an:

وَ اسۡتَشۡہِدُوۡا شَہِیۡدَیۡنِ مِنۡرِّجَالِکُمۡۚفَاِنۡ لَّمۡ یَکُوۡنَا رَجُلَیۡنِ فَرَجُلٌ وَّ امۡرَاَتٰنِ مِمَّنۡتَرۡضَوۡنَ مِنَ الشُّہَدَآءِاَنۡتَضِلَّ اِحۡدٰىہُمَا فَتُذَکِّرَ اِحۡدٰىہُمَا الۡاُخۡرٰیؕ (282:2)

And call in two male witnesses from among your men [over the document of loan]. And if two men cannot be found, then one man and two women from among those whom you deem appropriate as witnesses so that if either of them gets confused the other reminds her. (2:282)

In the opinion of this writer, this view of our jurists concerning the testimony of a woman is not correct owing to the following two reasons.

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 as if after addressing a court of law 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 fulfil this responsibility in a befitting manner. The verse 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 reiterated that the verse 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.

Consequently, about all such directives the Qur'an says:

ذٰلِکُمۡ اَقۡسَطُ عِنۡدَ اللّٰہِ وَ اَقۡوَمُ لِلشَّہَادَۃِوَ اَدۡنٰۤیاَلَّا تَرۡتَابُوۡۤا(282:2)

This is more just in the sight of God; it ensures accuracy in testifying and is the most appropriate way for you to safeguard against all doubts. (2:282)

Ibn Qayyimcomments on this verse in the following manner:

فهذا في التحمل والوثيقة التي يحفظ بها صاحب المال حقه لأفي طريق الحكم وما يحكم به الحاكم فان هذا شيء وهذا شئ

It relates to the heavy responsibility of testifying by which a person of wealth protects his rights. It has no concern with the decision of a court. The two are absolutely different from each other.[5]

In recent times, two new arguments have been advanced by various quarters to lend support to the view of the jurists concerning the testimony of women.

The first of these arguments is based on the words اربعة شهداء (arba'atah shuhada: four witnesses) of 24:4 and اربعة منكم (arba'ataṇ minkum: four [witnesses] among you) of 4:15. It is held that since اربعة (arba'atah) is in the feminine gender and according to the established principle of Arabic grammar the معدود (ma'dud: the counted object) this عدد ('adad: the numeral) qualifies should be masculine. Consequently, by the words اربعة شهداء (arba'atah shuhada: four witnesses)four men are necessarily implied; women cannot be included.

On a first look, this argument seems to be based on strong grounds since it is in accordance with the rules of Arabic grammar. However, a closer look reveals how baseless it actually is. Any one who has some knowledge of Arabic knows that this rule not only states that from three to ten if the معدود(ma'dud: the counted object) is masculine the عدد ('adad: the numeral) is feminine but also says that if the معدود (ma'dud: the counted object) is a noun that is used both for masculine and feminine entities, then also its عدد ('adad: the numeral) shall necessarily be feminine.

Consequently, in the following verses the عدد ('adad: the numeral) of ازواج (azwaj: pairs), which is the counted object is ثمانية (thamaniyah) which is in the feminine gender:

ثَمٰنِیَۃَ اَزۡوَاجٍ ۚ مِنَ الضَّاۡنِ اثۡنَیۡنِ وَ مِنَ الۡمَعۡزِ اثۡنَیۡنِ ؕ قُلۡ ءٰٓالذَّکَرَیۡنِ حَرَّمَ اَمِ الۡاُنۡثَیَیۡنِ (143:6)

[Take] eight pairs: of sheep a pair, and of goats a pair; say, has He forbidden the two males or the two females. (6:143)

Consider also the following verses:

مَا یَکُوۡنُ مِنۡ نَّجۡوٰی ثَلٰثَۃٍ اِلَّا ہُوَ رَابِعُہُمۡ وَ لَا خَمۡسَۃٍ اِلَّا ہُوَ سَادِسُہُمۡ (7:58)

There is not a secret consultation between three, but He makes the fourth among them, – nor between five but He makes the sixth. (58:7)

As in the case of اربعة منكم (arba'ataṇ minkum), the معدود (ma'dud: the counted object) of ثلاثة (thalathah: three) and that of خمسة (khamsah:five) has been suppressed because it is so obvious. The suppressed معدود (ma'dud: the counted object) is something to the effect of نفر (nafr: group). Since nafr is a word that can be spoken both for masculine and feminine genders, its عدد ('adad: the numeral) in the verse is also feminine.

Similar examples can be found in the following Ahadith also:

وَطَعَامُ الِاثْنَيْنِ يَكْفِي الْأَرْبَعَةَ

The food of two suffices for four.[6]

إذا كان ثَلَاثَةٌ فلا يَتَنَاجَي اثْنَانِ دُونَ وَاحِدٍ

If there are three people [present] two [of them] should not whisper.[7]

مَا مِنْ مُسْلِمٍ يَشْهَدُ لَهُ ثَلَاثَةٌ إِلَّا وَجَبَتْ لَهُ الْجَنَّةُ

If three bear witness for a Muslim, he shall definitely enter paradise.[8]

رُفِعَ الْقَلَمُ عَنْ ثَلَاثَةٍ عَنْ النَّائِمِ حَتَّي يَسْتَيْقِظَ

Three people cannot be held liable: [one among them is] a person who is sleeping until he awakens.[9]

In these Ahadith also, the numerals اربعة (arba'atah) and ثلاثة (thalathah) are feminine and any one who knows the language can in no way insist that the معدود (ma'dud: the counted object) of these numerals are only men and that women cannot be implied.

The second of these arguments is that since 2:282 (quoted above) mentions that a woman might get confused thereby casting a doubt in her testimony, so in accordance with the following words attributed to the Prophet (sws) whereas a hadd punishment can in no case be given in cases in which they have testified, a ta'zir punishment can be given in such cases:

اِدْرَؤُا الْحُدُوْدَ بِالْشُبْهَاتْ

Do not enforce a hadd punishment if there is a doubt.[10]

The following Ahadith are of similar meaning also:

ادْرَءُوا الْحُدُودَ عَنْ الْمُسْلِمِينَ مَا اسْتَطَعْتُمْ

Refrain from enforcing hudud as much as is possible for you.[11]

ادْفَعُوا الْحُدُودَ مَا وَجَدْتُمْ لَهُ مَدْفَعًا

Withdraw hudud wherever you can find a plea.[12]

A little deliberation shows that this argument also is baseless.

Firstly, if in a particular case a woman does in fact get puzzled while giving her testimony and the court reaches the conclusion that her testimony has become ambiguous as a result, it certainly has the right to disregard her testimony. However how can this be made a general principle of law and on its basis a woman's testimony be forsaken forever? Just as there is a chance that she might get puzzled while giving her testimony, there is an equal if not a stronger one that she may testify in a clear and unambiguous manner. The Qur'an has mentioned her testifying in a state of confusion as a chance occurrence and not as a general or a certain one. A chance is just a chance and on what grounds can it be made a general principle?

Secondly, the Hadith in no way means that if there is some doubt, a hadd punishment shall not be given; it only means that in case of doubt no punishment at all can be given. The word hadd has not been used as a term here; it is used in its literal sense for the term came into existence much after the Prophet (sws). What he has reported to have said is based on the universal principal of the ethics of law that since in case of doubt a crime does not stand proven, the criminal cannot be punished. Consequently, if these people say that a ta'zir punishment can be given on the basis of a woman's testimony, then this only means that the crime stands proven in their eyes. But then the question arises: if the crime stands proven, then why can a hadd punishment not be given? And if they contend that if a woman's testimony always leaves room for doubt then a crime cannot be considered to be proven; so on what basis should the ta'zir punishment be administered?

A crime, obviously, cannot be regarded to be proven ten, twenty, ninety or ninety nine percent. It is either proven one hundred percent or not proven at all. Consequently, it is absolutely baseless to accept a state between proof and lack of proof in a crime and in no way can it be accepted that a hadd punishment will be administered on certain grounds and ta'zir punishment on certain other grounds. No doubt that the nature of the crime and the circumstances of the criminal do have a bearing on the extent of punishment that is to be given. However, to imply that the "extent" of proof forms a basis for punishment is something common sense totally rejects and human nature completely discards.

(Translated by Dr Shehzad Saleem)

______________

[1]. Al-Tirmidhi,Sunan, vol. 3, 626, (no. 1341).

[2]. Abu 'Abdullah Shams al-Din Muhammad ibn Abi Bakr ibn Ayyub ibn Sa'd ibn Qayyim, I'lam al-muwaqqi'in 'an rabb al-'alamin, vol. 1 (Beirut: Dar al-jil, 1973), 90.

[3]. Ie., those among Muslim women who habitually commit fornication.

[4]. Abu al-Walid Muhammad ibn Ahmad ibn Muhammad ibn Rushd al-Qurtubi, Bidayah al-mujtahid wa nihayah al-muqtasid, vol. 2 (Beirut: Dar al-fikr, n.d.), 648.

[5]. Ibn Qayyim, I'lam al-muwaqqi'in, vol. 1, 90.

[6]. Al-Darimi, Sunan, vol. 2, 136, (no. 2044).

[7]. Muslim, Al-Jami' al-sahih, vol. 4, 1717, (no. 2183).

[8]. Al-Tirmidhi,Sunan, vol. 3, 373, (no. 1059).

[9]. Abu Da'ud, Sunan, vol. 4, 139, (no. 4398).

[10]. IbnHajar, Al-Talkhis al-Habir, vol. 4, 56.

[11]. Al-Tirmidhi,Sunan, vol. 4, 33, (no. 1424).

[12]. Ibn Majah, Sunan, vol. 2, 850, (no. 2545).




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