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    Saturday, 19 July 2014

    Islamic Law of Evidence

    Introduction

    Facts are of two kinds, which a person uses against another person during judicial proceedings. Some facts are alleged in pleadings. Contrary to these facts, there are some other facts, through which facts alleged in pleadings are proved or disproved. These facts of second kind are, in fact, evidence. In Islamic laws, evidence is of great importance.

    Definition

    (a) Dictionary definition 
    Evidence “something legally submitted to a tribunal to ascertain the truth of a matter.”
    (b) According to Holy Prophet Muhammad (PBUH)
    Holy Prophet Muhammad has used the word “Bayyinah” for evidence, which means anything that manifests the facts disputed in a court.

    Importance in The Holy Quran And Sunnah

    (i) Holy Quran Says, “Do not conceal testimony. He who conceals it, his heart is sinful”. (Surah-al-Baqra-282)
    (ii) Saying of the Holy Prophet Muhammad (PBUH)
    if people were given what they asked they brought a case, some would claim the lives and property of others.

    Burden of Proof

    (i) Common Rule (Practice)
    The common rule of burden of proof is that burden of proof lies on the party that substantially asserts the affirmation of the issue and not upon the party who denies it.

    (ii) General Rule
    The general rule of burden of proof is that he who asserts must prove.

    Kinds of Evidence

    In Islamic laws, there are different kinds: Some of them are recommended ones and they are admitted by the courts. However, some are mostly of no significant and some are only admitted particularly when some conditions are fulfilled. Shortly speaking, it can be classified into following kinds according to Islamic law.

    (i) Universal Evidence
    If a number of persons give evidence in continuation in respect of a matter or occurrence of an incident, then such is called as universal evidence. Usually such kind is based on statements of several persons. The basic philosophy, which works behind the concept of this kind, is that evidence of many persons in continuation makes it almost impossible to believe that their statements are false in respect of a matter or occurrence of an incident. For example, oral statements of some persons in continuation about occurrence of theft are considered sufficient evidence and the same is universal evidence.

    (ii) Documentary Evidence 
    When some evidence is produced before the court and the same is in written or carved or signed or marked form, then such is called documentary evidence. Usually such kind is consisted of documents. For example, production of registered Tamleeknama in the court is documentary evidence.

    (iii) Circumstantial Evidence
    When some certain evidence is not available in some obvious form about some matter or occurrence of an incident, then evidence is derived from the circumstances about the matter or occurrence of the incident, and such is called circumstantial evidence. Usually such kind is indirect evidence. For example, if thieve forgot his ring during theft, then it will be derived from the circumstances whether this ring belongs to thieve or not. 

    (iv) Admission or Acknowledgement
    If an accused admits or acknowledges that he/she has committed some crime, then such admission of acknowledgement is evidence against the accused. However, the court can convey the accused the he/she is not bound to make such admission or acknowledgment can be used against him/her. In addition to this conveyance, the court has to consider the following conditions before announcing its decision on the basis of such admission or acknowledgement:

    (a) Admission or acknowledgement should be without use of force or threat
    It is necessary that admission or acknowledgement should be without any use of force or threat.

    (b) Admission or Acknowledgement should not be in Contradiction to the facts of the case
    It is also essential that admission or acknowledgement should not be in contradiction to the facts to the facts of the case.

    (v) Hear-say Evidence
    When some witness states that he/she has no direct information and knowledge about a matter or has not seen the occurrence of an incident, but has heard someone delivering information or knowledge about the matter or occurrence of incident, then such is called hear-say evidence; the same is discouraged in Islam.

    Qualifications of a competent Witness

    A witness should be 
    v  Muslim
    v  Male
    v  Adult (Maturity)
    v  Of sound mind
    v  Of Reliability of character
    v  Abstained from major sins

    Qualification according to Muslim Jurists

    The Muslim Jurists have evolved following conditions for a competent witness.
    v  Physically fit
    v  Competent to record evidence
    v  Capable of five human senses
    v  Eye-sight in the case of facts capable to being seen
    v  Honesty and moral uprightness
    v  Capacity of communication in case of Hudood
    v  Not debarred under Qazf
    v  Not debarred otherwise by the court of law
    v  Must be of good reputation
    v  Not convicted of perjury or giving false evidence, subject ot certain exceptions
    v  Having no motive behind (freedom from prejudice and bias)
    v  Mentally fit
    v  To be a male, in cases of Hudood and Qisas.
    v  The witness is to be of the same religion as that of party against whom appearing or should be Muslim

    Disqualification From being a Witness

    A person otherwise qualified may not be admitted as a competent witness due to following disqualifications. In other words, court can reject evidence of the following persons.
    v  Lunatic, Insane and idiot
    v  A person convicted of Qazf
    v  Persons short of memory
    v  Non-Muslim and enemy
    v  Close relatives and fast friend
    v  Children of parties
    v  Persons who make fun to religion
    v  Offender of major sins
    v  Hypocrite and usurper
    v  Bad reputed person
    v  Habitual liar
    v  Hit under Hudood

    Competency of Women as Witness

    The Competency of women as a witness is discussed under the following heads

    (i) Competency in Hudood Cases
    The competency of a women in cases, belonging to the category of violation of right of Allah, viz Hudood, is that she is regarded as incompetent.

    (ii) Competency in Cases Where Violation of Right of Individual is Involved
    In case where violation of right of individual is involved such as Tazir, the testimony of women is accepted if the prescribed Nisab is observed, that is the testimony of one male and two female witnesses.

    (iii) Financial Transactions
    In matters relating to financial or further obligations, the testimony of two women is accepted with one male.

    (iv) Specific Matters where Testimony of Women is needed
    Testimony of women in matters which are generally known to women such as whether a particular child was bon to particular woman, can be proved even by the testimony of single women.

    (v) Other Matters
    In other matters, a court may accept and act upon the testimony of one woman.
    Note: It is necessary that a woman must possess all other qualifications of a competent witness.

    Conclusion

    To conclude, it can be stated that evidence is considered very vital in Islamic laws as far as solution of matters is concerned: Islam, on the one hand, makes it obligatory for a witness to give evidence about a matter or occurrence of an incident through description of certain facts and not through presumption, and on the other hand, makes the courts bound to pass their decisions on the basis evidence after proper examination of the evidence and not on the basis of presumption.




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    Item Reviewed: Islamic Law of Evidence Rating: 5 Reviewed By: Usman Ali
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