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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