Ahmad ad-Da’our
The Rules of Testimonial Testimonial Evidences (Ahkaam ul-Bayyinaat)
From the pulications of !i" ut-Tahrir
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*ontents
The rules of testimonial evidences Types of testimonial evidences *onfessions (+,raar) and oaths (aymaan) Testimonies (hahadaat) Definition of Testimony (shahaadah) *onditions (shuroot) of the .itness The testimony of a non-/uslim The minimum numer (niaa) of Testimony Type of .itnesses The e0ceptions for the nisa of the testimony The testimony of .omen Those .hose testimony is not accepted 1hen does the untrust.orthy person ecome trust.orthy such that his testimony is accepted2 +t is not valid for the 3adi to 4ive a 5ud4ment ased on his kno.led4e The seein4 and .itnessin4 of the 3adi +nformin4 (ikhar) and in,uiry (istikshaaf) Documentary evidence i4ned documents 6fficial documents Documents issued y civil departments 7nsi4ned ordinary documents E0ternal8forei4n documents 9resentin4 the document
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Bismillah irRahman irRaheem
The Rules of Testimonial Evidences The rules of testimonial evidences, like the rest of the Islamic rules, are Shar’iyyah rules deduced from their detailed evidences (adillah tafSeeliyyah). Evidences are either presented with regards to transactions (mu’amalaat ) or punishments (‘uqubaat ) however the !"lama did not differentiate #etween the rules of testimonial evidences in transactions (mu’amalaat ) and the rules of testimonial evidences in punishments (! uqubaat ), and hence they cited all of them in the #ook of testimonies ( Kitaab ash-Shahadaat ). They completed the study of some of their su#$ects in the #ook of $udicial verdicts (Kitaab al-Aqdiyah) and the #ook of claims % lawsuits % legal proceedings ( ad-Da’waa) and testimonial evidences. &hen discussing some of the punishments they clarified some of the testimonial evidences, #ecause they happened to #e of their conditions or relevant part of their discussions. The evidence (#ayyinah) is anything that clarifies the claim % allegation % lawsuit, and it is the proof of the plaintiff for his allegation. It has #een narrated #y !'mr #. Shu’ay# on the authority of his father who narrated from his grandfather that the rophet (saw) said :The urden of proof lies on the plaintiff and the oath is to e s.orn y the defendant;’ 'l* +ayhai reported with a sound Isnaad (chain of narraters) that the rophet (saw) said :The urden of proof lies on the plaintiff and the oath is to e s.orn y the person .ho denies;’ Thus, the evidence is the proof of the plaintiff, which proves his case%claim. It is the proof, which is presented to esta#lish the case. It is not accepted as a proof unless it is definite and decisive. -s, it is invalid for anyone to testify unless it is #ased on certain knowledge i.e. certainty ( yaqeen). Thus, it is invalid for the testimony to #e #ased on least amount of dou#t (Zann). That is why the rophet (saw) said :+f you’ve seen it like the sun then ear .itness< other.ise desist;’ &hatever has come #y way of viewing or its like, such as the five senses, and it is certain #ecause the senses distinguished it, and this was done on the #asis of knowledge ie certainty (yaqeen), it is then allowed for the person who viewed it to give testimony. owever, if he did not view it in this manner, then he is not allowed to testify #ecause testimony is invalid unless it is #ased on certainty (yaqeen) . If it has #een given on the #asis of certainty such as the earwittness in matters that are considered valid #y it, like marriage, lineage or death and the like, then it is allowed for a person to give testimony #ecause he is certain. owever, /////this is not e0plained #y his testimony. This is #ecause certainty is necessary for him until he can give witness////.
Similarly, the oath (yameen) must #e sworn on the #asis of certainty. &hen the plaintiff takes oath to prove his case when he has only one witness in the su#$ect of financial claims for e0ample, and when the defended takes the oath in case the plaintiff fails to prove his case, then #oth must take the oath on the #asis of certainty. If the matter was not certain, then it will invalid for each one of them (the plaintiff and the defendant) to take the oath. That is why the 'llah (swt) has threatened the false oath with severe punishment. It has #een narrated on the authority of '#u urayrah that the 1essenger of 'llah (saw) said =Five matters have no atonement (kaffarah)> Associatin4 partners .ith Allah? killin4 a person ille4ally? accusin4 a eliever? fleein4 from a attlefield? and a false oath y .hich a property is ille4ally ac,uired;@ +ukhari reported the adeeth through I#n !"mar a eduin came to the 9rophet (sa.) and said> 6 /essen4er of Allah? .hat are the 4rave sins (kaaair)2 !e said> Assi4nin4 partners (shirk) to Allah? killin4 a person ille4ally ? accusation of a eliever ? fleein4 from a attlefield ? and the false oath (al-yameen al-4hamoos);’ This is evidence that the aoth should #e taken only on the #asis of certainty. The e0ample of the testimony and oath is like the rest of the testimonial evidences which are the confession ( iqraar ), the traders’ records and other written #ills%receipts . These must #e definite and certain and they are invalid to #e #y way of least amount of dou#t (zanni ). This is #ecause the testimonial evidences are proofs to esta#lish the claim and they are the proof of the claimant for his claim% case. The proof or evidence cannot #e a proof and evidence unless it is definite. 'lthough the testimonial evidences must #e definite, this does not mean the $udgment according to it is #ased on certainty, and nor does it mean the $udge is o#liged to give $udgement according to them. 2ather, the issue is that the testimony itself must #e definite, while the $udgement itself is a different issue. This is #ecause the $udgement is #ased on the least amount of dou#t (ghalabat uz *Zann). This is #ecause 'llah (swt) said to the 1essenger “Lo !e re"ealed to you the #oo$ with truth% so that you rule&'udge between man$ind by that whi(h Allah showed to you%) 3'n*4isaa’ 5678 ie according to your view. This includes the opinion, which is #ased on certainty (yaqeen) and the opinion #ased on least amount of dou#t (zann). The 1essenger (saw) gave $udgement regarding an issue and spoke in a way which indicates that his $udgement was #ased on least amount of dou#t. It has #een narrated #y "mm Salamah that the rophet (saw) said =+ am only a human ein4? and you refer to me for 5ud4ment; ome of you mi4ht e more intelli4ent in their proof than others? so + 5ud4e ased on .hat + heared; 1hoever + 5ud4ed for his sake .ith somethin4 of his rother’s ri4ht? he should not take it? ecause + .ould have 4iven him a piece of fire;@ This is evidence to say that the $udge gives $udgment 3
#ased on the least amount of dou#t. 1oreover, the 1essenger (saw) stated that the $udge gives $udgement #ased on the least amount of dou#t. It has #een narrated #y !'mr #. !'as that he heard the 1essenger (saw) say =+f the 5ud4e 4ave a verdict after makin4 i5tihad? and he .as ri4ht? he .ould have t.o re.ards; +f he 4ave a verdict after makin4 i5tihad? and he .as .ron? he .ould have one re.ard;@ 'll of this indicates that the fact that the testimony must #e #ased on certainty does not mean the $udgment%verdict must #e #ased on certainty, rather it is #ased on least amount of dou#t (9ann). 's for the fact that the testimony is definite does not mean the $udge is o#liged to give $udgement according to it. This is #ecause the testimony is certain in the sight of the witness. owever, the $udge might have a reality that contradicts this testimony. e might even have a definite te0t that contradicts this testimony, or he might think the witness is most likely lying. Therefore, the $udge is not o#liged to $udge according to a testimony, even if it was given on the #asis of certainty rather he has the choice of whether to accept it or re$ect it.
Types of Testimonial Evidences
The testimonial evidences are of four types only, and they are the following confession (iqraar ), oath (yameen), testimony (shahaadah) and definite written #ills% documents%receipts (mustanadaat $hattiyyah). There is no testimonial evidence other than these four categories. 's for circumstancial evidences (qara’in), they are not considered part of the testimonial evidences #y the Shar’ , since there is no evidence to indicate that it is part of the testimonial evidences. The daleel for confession (iqrar ) has come in the :ur’an and adeeth. e (swt) said “And when !e too$ your * ledge +meethaqa$um, Do not shed the blood of your *eo*le% and nor turn a *arty of your *eo*le out of your dwellings. /hen you agreed +made iqrar, while you were witnesses.; 3+aarah <=8 'nd in the adeeth of 1a’i9 narrated on the aurhrity of I#n !'##as that the rophet (saw) said to 1a’i9 #. 1alik >+s it true .hat + have heard2 /a’i" said> .hat have you heard2 !e (sa.) said> + have heard that you had intercourse .ith the slave 4irl of so and so family; !e said> es; o he 4ave .itness four times; The /essen4er (sa.) 4ave instructions re4ardin4 him? so he .as stoned.; 'nd in the adeeth of '#u +akr regarding the story of 1a’i9 it was mentioned that 1a’i9 confessed four times and so the rophet (saw) ordered that he #e stoned. 'nd in the adeeth it is mentioned that the rophet (saw) said =Co? 6 7nays ' a man from Aslam- to this .oman and if she confessed stone her;@ The evidence for oaths has come in the :ur’an and adeeth, e (swt) said “Allah will not ta$e you tas$ for that whi(h is unintentional in your oaths% but 0e will ta$e you to tas$ for the oaths whi(h you swear in earnest. /he e1*iation for it is the feeding of ten of the needy with the a"erage of that with whi(h you feed your own fol$% or the (lothing of them% or the freeing of a sl"e. And for him who does not find that then a three days’ fast. /his is the e1*iation of your oaths when you ha"e sworn.) 3al*1aa?idah<@8 'nd he (saw) said :The urden of proof lies on the plaintiff and the oath is to e s.orn y the person .ho denies;’ The evidence for testimony (shahaadah) has come in the :ur’an and adeeth. e (swt) said )And get two witnesses out of your own men. And if there are not two men +a"ailable,% then a man and two women% su(h as you agree for witnesses% so that if one of them +two women, errs +tadilla,% the other (an remind her.) 3al*+aarah A
*onfessions (Iqraar ) and 6aths (aymaan) Donfessions (3qraar ) and oaths (aymaan) are #oth from the testimonial evidences, #ut the uahaa’ have assigned for each one on of them a specific chapter different to that of the testimonial evidences (#ayyinat). Thus, one has to refer to their respective chapters in the recognised sources of ih, especially those, which cite the hu$m and its evidence. owever, we should give attention to a point concerning the confessions and oaths. 's for the issue of confessions, the $udge should not #e content simply with the confession of the defendant, rather he needs to scrutinise the confession, whether the person has really confessed, and that what he has confessed is the alleged%claimed matter or something that o#liges punishment. e must ask him a#out what he has confessed and he should e0aggerate in his uestioning. Thus, when the 1essenger of 'llah (saw) accepted 1a’i9 confession of 9ina, he asked him three times regarding his confession, and he asked his family a#out him. The 1essenger (saw) used to ask the one who has confessed to e0plain his confession. e even used to ask him e0plicitly, and did not use allusion%indirect e0pression in matters, which it is prefera#le not to mention (e0plicitly). It has #een narrated on the authority of '#u urayrah, he said > =A man from Banu Aslam came to the 9rophet of Allah (sa.) and ore .itness? four times? a4ainst himself that he had reached out to a .oman ille4ally ; Each time the 9rophet turned a.ay from him ; !e approached him at the fifth time and said> !ad you se0ual intercourse .ith her2 !e said> es; !e (sa.) asked> ike .hen the little stick 4oes into the uhl container and the rope 4oes do.n the .ell2 !e said> es; !e asked him> Do you kno. .hat is ina2 !e said> es; + approached her unla.fully as a man .ould approach his .ife la.fully;’ This indicates the e0tent of enuiry, which the $udge must enuire the one who made confession a#out . It is not correct for him to accept his mere confession without checking it to make sure it is certain.
's for the issue of taking the oath, it means the oaths over the past and not over the future. The oaths over the future for which e0piation (kaffaarah) is possi#le have nothing to do with the testimonial evidences. 2ather oaths that are part of the testimonial evidences are those that are over the past, and these are known as yameen ghamoos (sinking oath) !false oath’ #ecause it immerses the one who made it into the fire. 'ttention needs to #e drawn to the fact that when the adi demands an oath from either the defendant or the plaintiff, the oath must #e according to the intention (niyyah) of the one who demands the oath, ie according to the intention of the $udge. So, allusion%concealment (tauriyah) is not accepted in it, and nor it is valid. It is narrated from '#u urairah, he said The 1essenger of 'llah (saw) said =our oath is that y .hich your companion .ould elieve in .hat you said;@ It is narrated #y 1uslim as =The oath is accordin4 to the intention of the one .ho demands it;@ This indicates that what counts is the aim of the one who demands the oath, without difference #etween him #eing the $udge or the opponent, #eing offender or offended, and trustworthy or liar. The oath has to #e according to the intention of the one who demands it and not the one who gives%takes it. 's regards what was narrated from Swayd i#n an9alah, he said =1e .ent out to see the /essen4er of Allah (sa.)? accompanied y 1a’il in !a5ar; An enemy to him took him? so the people refrained from 4ivin4 oath? ut + 4ave an oath that he is my rother? so he .as released; 1e came to the /essen4er of Allah (sa.)? so + mentioned to him the matter; !e said> ou .ere more ri4hteous and trust.orthy than them< the /uslim is the rother of the /uslim;@ This indicates that the oath is according to the intention of the one who demands it, and it is valid to use the allusion in it. owever, this is the case when the oath is not demanded #y the $udge or the opponent. If the $udge or the opponent demanded the oath, then the oath must #e according to the intention of the one who demands it, and not that of the one who gives it. So, in order that the $udge does not make it possi#le for any #ody to resort to allusion for taking the rights of the people illegally, and for escaping the punishment against him, he must not accept that the plaintiff or the defendant starts giving the oath #efore he is asked. It is rather the $udge who asks for the oath from the one who is entrusted with it. In this case there would #e no dou#t that the oath is given according to the intention of the one who asked for it and not on the intention of the one who gave it. This is #ecause he was asked for the oath # y the $udge. Testimonies (hahadaat) The testimonial evidences (#ayyinaat) are, in priciple%in origin, the testimonies (shahadaat). The Bitaa# and Sunnah have #rought e0plicit and detailed rules for testimonies. e (swt) said ‘And get two witnesses out of your own men. And if there are not two men +a"ailable,% then a man and two women% su(h as you agree for witnesses% so that if one of them +two women, errs +tadilla,% the other (an remind her.’ 3+aarah A A man from !a.darma.t and a man from inda came to the 9rophet (sa.); The !adrami man said> 6 Allah’s /essen4er? this man has sei"ed land elon4in4 to me? : and the indi said? :+t is my land and is in my possession< he has no ri4ht to it;’ The 9rophet (sa.) asked the !adrami if he had any proof (ayyinah)? ut he replied that he had none? so he told him that he .ould have the indi s.ear on oath; !e replied? :6 Allah’s /essen4er? the man is a reproate (faa5ir) .ho .ould s.ear to anythin4 and not restrain from anythin4 ;’ The 9rophet told him that this .as the only thin4 you can demand of 5
him; The man sent off to take an oath? and .hen he had turned his ack? the /essen4er of Allah (sa.) said> +f he had s.orn aout his property to take it un5ustly? he .ill certainly meet Allah (s.t) .hile !e is turnin4 a.ay from him ;@ '#u Fawud narrated on the authority of 2afiG i#n Bhadi$ A man of the Ansar .as found in the mornin4 killed at hayar? and his relatives .ent to he 9rophet (sa.) and mentioned that to him; !e asked> !ave you t.o .itnesses .ho can testify to the murderer of your friend2 They replied> 6 /essen4er of AllahG There .as not a sin4le /uslim present? ut only He.s .ho sometimes have the audacity to do even 4reater crimes than this; !e said> Then choose fifty of them and demand that they take an oath< (ut they refused to accept their oath)? so the 9rophet (sa.) paid the lood money himself; These te0ts indicate the testimonies (shahadaat) and the testimonial evidence (#ayyina), and that the testimonies (shahadaat) are (part) of the testimonial evidences (#ayyinaat). The assumption and undertaking of the testimony is a duty on sufficiency ( fard $ifayah), #ecause its demand came decisive. 'llah (swt) says = And do not hide testimony. 0e who hides it% "erily his heart is sinful.) 3'l*+aarah A’"mar preached to us while we were at al*Ca#iah, he said =6 peopleG + stand amon4st you as the /essen4er of Allah stood amon4st us? .here he (sa.) said> + commend to you my companions? then those .ho follo. them? then those .ho follo. them? then makin4 lies spreads to the point that a person s.ears efore he is asked to do so? and the .itness 4ives testimony efore he is summoned;@ This is evidence that the witness does not undertake a testimony #efore he is asked to do so. Definition of Testimony (hahaadah)
The testimony is an authentic report to esta#lish%confirm a right (0aqq) #y using the word of testimony in the assem#ly of a $udge. This is the definition of testimony. The term testimony (shahaadah) is derived from the word mushaahadah (to witness), which means the viewing (mu’aayanah). That is why the undertaking%performance (of it) is called shahaadah, #ecause the direct viewing is its cause . Thus, a testimony takes place when there is viewing (mu’aayanah) or any one of its type, such as hearing or touching and other things similar to viewing (mu’aayanah).Since the a#solute (unrestricted) cause for the undertaking (of testimony) is the viewing (mu’aayanah), the undertaking is called testimony (shahaadah, ie viewing). The rophet (saw) pointed to that in his saying to the witness :+f you’ve seen it like (you see) the sun then ear .itness other.ise desist;’ This is an evidence to say it is invalid for anyone to give witness unless it is on the #asis of sure knowledge, ie #ased on certainty. The testimony should not #e #ased on least amount of dou#t. &hatever has come via the sensation or its types, such as through the senses, and this was on the #asis of sure knowledge, ie #ased on certainty (yaeen), then it is allowed for a person to testify to it. If it did not, however, come through this way, then it is not allowed for him to testify to it , #ecause it has to #e #ased on certainty. Therefore, it is not allowed to give witness #ased on hearsay ie it is not allowed for a witness to give testimony #y saying !I heard it from the people or I heard people saying such and such.’ owever, there are @ things, which are e0empted from this, and it would #e allowed to give testimony from what one has heard and they are marriage, lineage, death, and $udiciary (adaa’). There is no dispute with regards to these four matters #ut as for dowry (mahr), consummating marriage , freeing of a slave (!it), walaa? (loyalty of a slave), and endowment (waf) these matters are disputed. owever, the preponderant view is that one can give testimony in these @ matters #ased on what one has heard from the people. This is not from the angle of giving testimony #ased upon another’s testimony, ie one #ears witness #ased on the testimony of some#ody else. 2ather, this is from the perspective of testifying to what he knows. So hearing the people say so and so has died gives certainty that that person has died or that so and so is a :adi etc. This is a testimony #ased on certainty, since repetition and proliferation has made the matter a certain fact, and so the testimony is #ased on sure knowledge. owever, he should not say to the adi that he is testifying #ased on hearsay, since if he said that his testimony would not #e accepted. 2ather he should testify a#out the matter as if he saw it. This is #ecause it is not allowed for the testimony to #e #ased on hearsay. The hearsay in these @ situations is #ecause it is allowed for the witness to give testimony only. 6
In other words, the hearsay is one of the ways of gaining sure knowledge for giving testimony in these @ matters only, and it is invalid in other than them. . This is #ecause the reality of these @ matters, hearsay cannot occur in them unless they are certain and well known. This reality does not apply to anything other than these @ matters. rom this the meaning of that testimony is an authentic report #ecomes clear and it #ecomes truly clear that it is an authentic report. It is a report of someone trustworthy who is certain (of his report). 's for the fact that it is for esta#lishing a right (haqq), this is #ecause the testimonial evidence (#ayyinah) has #een legislated to reveal the right. +ased on this, the testimony of pure negation is not accepted. The testimony of negation is not accepted, #ecause it contradicts with the definition of testimony. owever, the negation that is interpreted as confirmation is allowed to use as testimony, #ecause it would not then #e a testimony of negation, rather a testimony of confirmation%esta#lihment. That is why they disallowed the testimony of pure negation and did not say negation only. This is #ecause it is allowed to give testimony #y negation interpreted into confirmation. The testimony must #e with the words !I #ear witness’ in the imperfect tense. If the witness did not say !I #ear witness’, #ut said I know that specific matter, or I inform of this etc,then he would have not given the testimony. This is #ecause the definition of testimony would have not then #een applied to it, so it would not #e a testimony. It is also #ecause the te0ts pronounced the word of !testimony’ (shahaadah), so no other words can replace it. 1oreover, the testimony includes the oath (yameen) it is rather one of the words of oath, so the meaning of oath is noticed in it. 's regards #eing in the imperfect tens, this is in order to indicate that he testifies for the present. ad he said !I testified’, it would not then #e valid, #ecause he might inform a#out the past, thus he is not a witness for the present. owever, if he testified #y using other than the word of !testimony’ and the $udge asked him, !do you testify like this’, and h e said !yes I testify like this’, he would then have given the testimony. 1oreover, in order that the testimony is considered valid, it must #e given in the prosecution assem#ly. This is #ecause the condition of the testimony is that it is given in the prosecution assem#ly. The definition of the testimony stipulates that it is an authentic report (delivered) in the $udge’s assem#ly. ad the witness testified in other than the $udge’s assem#ly, even #y the word of !I #ear wittness’, and even #efore the $udge himself, #ut the assem#ly was not prosecution sitting, then it would not #e considered a testimony. This is #ecause the $udge’s assem#ly is a condition for consideri#g it (valid). The ar#itrator is e0cluded from this, #ecause it is allowed to give testimony #efore him in other than the prosecution assem#ly. So, if he testified #efore the ar#itrator in any place, his testimony will #e considered (valid). This is #ecause the verdict%$udgment of the ari#trator is not restricted to an assem#ly rather, in any place he gave a verdict, that place would #e his $udgment assem#ly. This is different to the $udge, he is restricted to his $udgment assem#ly assigned #y the Imam, and #y the place of his authority (wilayah). 'ccordingly, the assem#ly is one of the conditions for the $udgment%verdict of the $udge and it is assigned as the assem#ly designated to him #y the Imam. Therefore, testimony is not valid #efore him unless it is in a $udgment assem#ly. The testimony is to prove the claim%case against the defendant. Therefore, it is only given concerning a case%claim #efore the $udge. owever, this does not mean that the precedence of the claim%case is one of the conditions of the testimony. 2ather, there is a difference #etween the right of humans and the right of 'llah. If it is a right for a particular person, such as the financial rights, marriage, trading and other contracts and rights of disposal (tasarrufaat ), and as retaliation (qasaas) from the punishments (!uqoobaat ), and as endowment (waf) to a particular person, and the like, then in such cases the precedence of the case%claim is one of the conditions of the testimony. This is #ecause regarding the rights of humans advancing a claim is stipulated so the testimony regarding such rights is not taken e0cept after the claim. This is #ecause the testimony has a human right, so it is not reuired e0cept after his claim and permission. 'nd #ecause it is proof and evidence of the claim, so it is not allowed to come #efore it. owever, if the testimony was a right for unspecific person, such endowment ( waqf ) to poor and needy people, or a will to poor and needy people, and a road to people or it was a right to 'llah (swt) such as the legal punishments ( hudood ) and the 9akah and the like, then the testimony does not depend on advancing a claim%case. This is #ecause this right is entitled to a specific human #eing, who claims for it and demands it. That is why '#u +akrah and his friends testified against al*1ughirah, and al*Carood and '#u urairah testified agaist :udamah i#n 1a9’oon for drinking $hamr . ikewise, those who testified against al*&aleed i#n !"#ah for drinking $hamr% did so without advancing a claim%case, and their testimony was allowed. Therefore, since the $udge’s assem#ly is one of the conditions of the testimony, then it is necessary to advance the claim%case regarding the human rights. 'dvancing a claim%case regarding other than the human rights is not stipulated. owever, in order to #e a testimony, and to #e proof, then it is necessary to #e in prosecution assem#ly.
*onditions (shuroot) of the 1itness
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&hat is stipulated for the witness is what has #een stipulated for the rest of the o#ligations, which is that he should #e mature (baaligh) and sane (!aail) due to the adeeth that the pen has #een lifted from three people, which includethe child until he #ecomes mature and the insane until he regains his sanity. It is also #ecause 'llah (swt) said ! And if there are not two men +a"ailable,.’ 3+aarah A’addalt ush-shaahida meaning I ascri#ed him (the witness) to al-‘adaalah, and I descri#ed him with it. It is said !’uddila !adaalatan and !udoolatan so he is !adl , ie accepted. The word !adl is used for the single person and for the plural, #ut !udool can #e used as well for the dual and plural. I#n al*'n#ari said that '#u al*'##as said the following poetry !a ta’aaqada al-‘aqda al-watheeqa wa-ashhadaa 5in $ulli qaumin muslimayni ‘udoolaa 'nd they (#oth) pledged the firm contract and used, as witnesses rom every people, two !udool 1uslims
It is possi#le that there is agreement also with the feminine, such as saying ‘imra’atun ‘adlatun’ , ie a $ust woman. Some scholars said that !adaalah is an attri#ute the o#servance of which o#liges the guard against anything that usually #reaks the sense of honour (muroo’ah) openly. So, making one of the minor lapses once, and distortion of the speech do not #reak the muroo’ah openly, #ecause of the possi#ility of mistake, forget and interpretation. This is different from the case if this #ecame known and was repeated. Then what appears is the #reak (of muroo’ah). The ha#it of every person and what 8
he is used to, in terms of his dress, handling trading and carrying of goods and the like have to #e taken in consideration. So, if he did an inappropriate matter unnecessarily, then this #reaks the muroo’ah, otherwise not.; This te0t indicates that !adaalah differs according to the (human) environments and this is #ecause the word ! istiqaamah’ is am#iguous, which led to this contrast regarding it. owever, it is possi#le to refer to the linguistic meaning of the word ! adl , and this indication is then adopted. Their saying !It is what stands in the souls as #eing upright ( mustaqeem)’. This indicates the one who is not known a#out him to openly violate what the people consider as inappropriate. Therefore, it is prefera#le to say that !adl (person) is the one who restrains himself from what the people consider as violation to istiqaamah, whether he was 5uslim or $afir . This is #ecause al-‘adaalah was stipulated in the testimony of the 5uslim and in the testimony of the $afir #y using the same e0pression without difference. 'llah (swt) says “Let there be witnesses between you when death draws to one of you% at the time of bequest% two 'ust +‘adl, men witnesses from among you% or two others from other than you.) 3'l*1aa’idah 56J8 This means they from other than 5uslims. So :ur’an said two ! adl (men) from the 1uslims, or two !adl (men) from non*1uslims. ow it is possi#le that we define ! adaalah as non*committing a ma$or sin ($abeerah) and insistence on a minor sin (sagheerah), regarding a non*1uslimK ow can we also re$ect (as witness) the one who was disrespectful to his parents once, and accept who was spy ( 'aasoos) once, $ust #ecause spying is not from the ma$or sins ($abaa’ir )K Therefore, the true meaning of !adl is the one who was restrained from what the people view as violation to istiqaamah (integrity). So, whoever his condition is like that he would #e ! adl , #ecause he is from amongst those who stand in the souls as #eing mustaqeem (upright). owever, whoever is known to #e insolent in committing the haram, or to commit the sins openly or heedless of them, or he was known of lack of istiqaamah (integrity), the he is faasiq. Thus !adl is opposite to faasiq, and ‘adaalah is opposite to fisq. 6aasiq is the one who is not restrained fro the haram, or who was known of the lack of istqaamah. !Adl is the one who was restrained from the haram, or lack of istiqaamah is not known a#out him. The fact that !adaalah is a condition of testimony is confirmed #y is (saw) saying “4 you who belie"e 3f an e"il-li"er + faasiq, bring you a re*ort% "erify it% lest you smite some fol$ in ignoran(e and afterward you be(ome sorry for what you did.) 3'l*u$uraat J8 The meaning of not accepting the report of the faasiq is the acceptance of the report of the !adl. In other words, if other than a faasiq, ie an !adl , #rought you a report then do not verify it rather accept it. The re$ection of the report of the faasiq is evidence that the fact he is not faasiq, ie he is !adl , is a condition for accepting his testimony. The 1uslim, in principle, is !adl until fisq is proved against him. This is #ecause em#race of Islam makes the one who em#races it #asically !adl . !"mar wrote to '#u 1ouas >1uslims are ! udool (pl. of !adl ), some of them over some other, e0cept the one who is e0perienced to have given false testimony (shahhadat zoor ), or lashed over a hadd (punishment) or withholding (daneen), regarding a loyalty (walaa’ ) or kinship (qaraabah).; This means, the 1uslim in origin is ! adl and what comes #ased on the origin does not need a proof for it. 2ather the proof was legali9ed to esta#lish the opposite of the origin. Therefore, the 1uslim witness is not asked a #out whether he is ! adl or not. This is #ecause the 1uslim in origin is !adl . If the defendant contested him, then he has to prove the claim of the lack of ! adaalah, ie the claim that he is faasiq. If he proved that, such as he was punished #y a shar’ee punishment, then his testimony is re$ected. owever, if the defendant did not prove his contest to the witness, then his contest is not considered, and the witness is treated as ! adl according to the origin. 's for the kafir, if he was known to restrain himself from what the people consider deviation from istiqaamah, then in origin he has !adaalah, so he is not verified. This is #ecause the one who is known to #e so is considered !adl . 'ccordingly, if his testimony was contested then the one who does that has to prove his contest. If however he were known to #e of those who do not restrain from what the people consider as deviation from istiqaamah, then the $udge would ask the defendant a#out him. If he did not contest his testimony, then he accepts his testimony, for his non*contest to his testimony means his acceptance of it. If however he contested him, then the $udge must verify him and he is not allowed to demand from the one who contested him to prove his contest, #ecause the witness has no !adaalah in origin. Thus, the $udge must verify the testimony of the witness, #ecause the hu$m regarding the one who does not restrain from what the people consider deviation from istiqaamah is the same hu$m of the faasiq so the $udge must verify him. owever, if the $aafir was unknown (ma'hool ), #ut he is known to follow a certain religion, then in #asis, he restrains from what is considered prohi#ited in his religion. This is #ecause, in origin, the person conducts himself according to his conviction, so he is restrained from what the people consider deviation from istiqaamah. Thus, the verification of the witness #y the $udge is in one case only, which is the $aafir who is known of not restraining from what the people consider deviation from istiqaamah otherwise, the $udge does not need to verify the witness. If the contest of the witness were proved, then he would re$ect his testimony without verification. If however the contest were not proved, then he would not re$ect it. & hen there is need for verification, the $udge investigates a#out the witness #y himself #y ver#ally asking a#out the witness #y any style he decides, so that he #ecomes convinced of the trueness or falsehood of the testimony. 's regards what is called secret and open vindication ( taz$iah), this is an action that has no #asis in shar’ . +eside the fact that it does not lead to know the witness, it has the possi#ility of making the testimony of the faasiq accepted. Therefore, it is not allowed at all to follow the style of vindication ( taz$iah). 9
+eside the !adaalah in the witness, it is stipulated that he has accuracy ( Dab/ ). The meaning of Dab/ is the good listening, understanding and retention%memori9ation till the time of performing the witness. In other words, what is stipulated in the report ($habar ) is stipulated in the testimony (shahaadah), #ecause it is reporting #y using the e0pression of testimony so it is necessary that the condition of accuracy (Dab/ ) #e fulfilled.
The testimony of a non-/uslim
The unrestricted (muTla) stipulation that the witness #e a 1uslim contradicts the Sharee’ah te0ts. The permissi#ility of a non*1uslim giving witness in respect to #euests has #een mentioned in the ayah ‘!hen death a**roa(hes any of you% and you ma$e a bequest% then ta$e the testimony of two 'ust men of your own fol$ or two others from outside.’ 3'l* 1aa?idah56J8 The permissi#ility of non*1uslims giving witness in murder cases is understood from the adeeth of +asheer #. Lasaar regarding the one who was killed in Bhay#ar. Therefore, it is invalid to make unrestricted stipulation that the witness has to #e a 1uslim. Similarly, it is invalid to apply the permissi#ility of non*1uslim witnesses generally, #ecause that contradicts the Sharee’ah te0ts. The stipulation of a witness #eing 1uslim is mentioned regarding financial matters in the following ayah ‘And get two witnesses out of your own men.’ 3+aarah A
understanding% or wea$% or is unable himself to di(tate% then let his guardian di(tate in 'usti(e. And get two witnesses out of your own men.’ 3+aarah A
The legislator has e0cluded #euests in case of travel only, and in this situation it allowed the testimony of non*1uslims in #euests e (swt) said !or two others +witnesses, from other than you % if you are tra"eling through the land and the (alamity of death befalls you’ 3756J8 ie if you have travelled on the land and you have #een afflicted #y the prospect of 11
death, then two other witnesses from other than you . The ayah stipulated in #euests the presence of two 1uslim witnesses, and added to that a specific case of #euests. That is it allowed the testimony of non*1uslims when travelling, as if it e0cluded travelling from the cases of #euests . This is #ecause the word !in’ (if) is conditional and gives the meaning of conditionality. It is linked to the saying !or two others +witnesses, from other than you ’. The meaning is the lawful testimony amongst you at the time of #euest is that two $ust witnesses from among you #e present . 'nd if you are travelling on the land then others can #e witnesses. The daleel that this is the meaning of the ayah is the fact that the testimony of a 1uslim whilst travelling is allowed, whether one was travelling or not. There is no meaning to linking ! if you are’ with !then ta$e the testimony of two 'ust men of your own fol$ ’, since there is no reason for saying this, and there is no need to mention the state of travelling in respect to the testimony of a 1uslim. So is (swt) saying ! if you are tra"eling through the land’ is solely linked to is (swt) saying ! or two others +witnesses, from other than you ’2 and it is not linked with is (swt) saying’ !then ta$e the testimony of two 'ust men of your own fol$’. !So the setting up of the ayah is as follows !or two others +witnesses, from other than you % if you are tra"eling through the land ’. Thus, the saying of 'llah (swt ,‘or two others +witnesses, from other than you ’ is evidence to allow the testimony of a non*1uslim. -ne should not say it is a daleel for testimony of non*1uslims in financial matters, #ecause such a view contradicts the te0t of the ayah and its indication. The te0t of the ayah refers to a specific case regarding a specific su#$ect, which is the su#$ect of #euests whilst travelling. Its indication, that it is related to #euests whilst travelling, which is one of the tasarrufaat , and not one of the financial rights. So, it is not like a de#t it is rather like the gift, therefore it does not apply to financial rights. rom all this, it appears clearly that the ayah is specific to a certain su#$ect, and that the ah$am that it includes, which is the stipulation that the witness should #e a 1uslim, is specific to this su#$ect. -ne case has #een e0cluded from it, which is travelling. So the testimony of a non*1uslim is allowed in #euests when travelling’ ! or two others +witnesses, from other than you % if you are tra"eling through the land.’ 3756J8 The ayah of ra'’ah and divorce contains the condition that the witness #e a 1uslim. e (saw) said !4 =ro*het +SA!, !hen you di"or(e women% di"or(e them at their 93ddah +*res(ribed *eriod,% and (ount +a((urately, their 93ddah +*eriod,’, 3Tala 58 until !/hen when they are about to fulfill their term a**ointed% either ta$e them ba($ in a good manner or *art with them in a good manner. And ta$e for witness two 'ust *ersons from among you +5uslims,.’ 3Tala A8 They discuss ra'’ah (return to one’s wife after divorce) and /alaq. They are special permission regarding the su#$ect of >a'’ah and /alaq. It is evidence for stipulating, in testimony for >a'’ah and /alaq% that the witness #e a 1uslim. +ut this does not serve as evidence to say that a non*1uslim cannot give testimony in su#$ects other than >a'’ah and /alaq. So the daleel is specific for a specific su#$ect and not general. 's for the stipulation that the witness in marriage #e a 1uslim this is taken from the implicit indication (dalaalatul fahwa) of the ayah. It means if in >a'’ah it is stipulated that the two witnesses #e 1uslims, then #y greater reason the two witnesses in respect to marriage must #e 1uslims. 4ot to mention that the >a'’ah itself is marriage to one’s divorced wife, and thus it is considered a marriage, and thus the ayah has indicted marriage. Therefore, the ayah is specific to a specific su#$ect. 's for the stipulation that the witness #e 1uslim, this is specific to the su#$ect in which that was mentioned, and that is >a'’ah and /alaq2 and marriage is included in the ra'’ah. . The adeeth of sighting the moon has stipulated that the witness #e a 1uslim. It has #een narrated on the authority of I#n !'##as that >A edouin came to Allah’s /essen4er (sa.) and said> + have seen the moon (ie of Ramadan); !e (sa.) asked> Do you ear .itness that there is no deity save Allah8 !e said> es; !e said> Do you ear .itness that /uhammad is the /essen4er of Allah2 !e said> es; o he said to Bilal> 6 Bilal? stand and 4ive the a"an to the people so that they fast tomorro. .; The su#$ect matter of this hadith is the sighting of the moon and the hadith discusses this su#$ect. &hat the 1essenger said when he asked the witness if he was a 1uslim does not apply to all witnesses. 2ather it is specific to the sighting of the moon of 2amadan. It is a daleel to stipulate that the witness #e a 1uslim in the su#$ect of sighting the moon. owever, it does not indicate that the witness has to #e a 1uslim in other than the issue of sighting the moon. It is a daleel to say the witness must #e a 1uslim in the su#$ect of sighting the moon, #ut not evidence for stipulating that witnesses must #e 1uslims. rom this it #ecomes clear that non*1uslims can #ear witness in everything, #ecause they are addressed #y the Sharee’ah duties (ta$aaleef ). It is correct for them to testify if no te0t has come making Islam a condition. Testimony is part of the ta$aaleef% #ecause it has come in the speech of the legislator, which is addressed to all people. Indeed, there is no te0t to stipulae Islam regarding the testimony , hence it is valid to #e undertaken #y a non*1uslim, like the Cihad. It also #ecomes clear that there are incidents in which the testimony of a non*1uslim is not accepta#le. 2ather it is stipulated that the witness is a 1uslim. 'nd these incidents are those, which have come with the condition that the witness #e a 1uslim in the te0ts. These are in the financial rights and #euests, e0cept when travelling, where in this situation only, the testimony of a non*1uslim is allowed. -ther areas, where non*1uslims cannot #e a witness is ra'’ah, and divorce #esides ra'’ah includes marriage. In other than such incidents in which the te0t has come stipulating that the witness #e a 1uslim, the testimony of non*1uslims would #e allowed. Thus, it is allowed for a non*1uslim to #e a witness in 0udood . e can #e a witness in zina. 's for is (swt) saying > And the did not then bring four witnesses,; 3A= =8 it did not stipulate Islam. 2ather it left it unrestricted #y using the indefinite witnesses (shuhadaa?). It is allowed for a non*1uslim to #e a witness in theft, defamation of chaste women (qaZf ), drinking alcohol and other hudood . It is allowed for him to #e a 12
witness in 'inayaat (murders). +eside the general (!aamm) evidence, this is supported #y what came in the hadith of +asheer #. Lasaar. It was reported #y 'l*+ukhari from +asheer i#n Lasaarclaimed that an Ansari man called Sahl i#n '#y atmah told him, >that some of his folk .ent to Khaiber ? and they dispersed there? and found one of them killed; They said to the people amon4st .hom they found him? you killed our friend; They said? .e did not kill? and kno. .ho killed; o they .ent to the 9rophet (sa.) and said> 6 Rasool Allah; 1e .ent to haier? and found one of us killed; !e said> +t is a 4rave sin< it is a 4rave sin (al-kir? al-kir); !e said to them> Brin4 testimonial evidence aout his murder; They said> 1e do not have evidence; !e said> Then they 4ive an oath; They sad> 1e do not accept the oaths of He.s; The /essen4er of Allah disliked that his lood ecomes unaven4ed? so he paid his lood money (diyyah)? as one hundred camels from the camels of the zakah (sadaqah);@ This hadith indicates that the 1essenger asked them for evidence a#out a murder happened amongst the Cews. This is #ecause they sad to him !&e went to Bhai#er, and found one of us killed’. Though he knew the incident took place in Bhai#er, amongst the Cews, and within their tri#e, he mentioned the evidence (#ayyinah) without specifying that it must #e from 1uslims, with the presence of the indication (areenah) that the incident was among the Cews. This indicates that if it came from the Cews he would have accepted it. This is confirmed #y his offer to the claimants that Cews take an oath. It came in the narration of Sahl i#n '#y atmah ! Thus, Cews releave you #y fifty oaths so they said how can we take oaths of kuffar people.’ The oath is one of the testimonial evidences (#ayyinaat). This indicates that, regarding the the #ayyinah of $inayaat, the non* 1uslim witness is accepted, as well as his oath; The testimony of a non*1uslim is also allowed in (transactions) mu’amalaat e0cept financial rights, in contracts, tasarrufaat (disposal rights) e0cept #euests (wasiyyah), ra'’ah, divorce and marriage. It is not allowed in sighting the moon due to the presence of te0t, #ut it is allowed in technical matters, such as medicine etc and in this su#$ect there is no difference #etween zimmi or musta’min. 's for the $afir harbi , one needs to look into this matter. If there is a state of war #etween them and us, ie there is a state of war with his people, then it is not a llowed for him to give testimony, due to the hostility #etween them and us. +ut if there is no actual state of war, then the testimony of a $aafir harbi is allowed #ecause it comes under the general speech of the shaari’ . -ne should not say that there is hostility #etween them and us, #ecause this hostility is on religion. 'nd what prevents the testimony is the worldly hostility, and the not religious hostility. The kafir, with which there is actual war, there is worldly hostility, which is the war itself. This is in relation to non*1uslims testifying to the side of 1uslims. 's for non*1uslim testifying against non*1uslims, that is allowed. It is allowed for Kuffar to testify against each other, due to what was reported #y I#n 1a$ah on the authority of Ca#ir that the rophet (saw) ! permitted the people of Zimmah testify a4ainst each other .’ 'nd the musta?min is like the Zimmi.
The minimum numer (niaa) of Testimony The one who studies the Sharee’ah from the aayaat and ahadith will see that the minimum num#er for testimonies is two witnesses. e (swt) said ‘And get two witnesses 3AA !e said> Brin4 your t.o .itnesses or you have his oath;’ 'hmad reported on the authority of !Iyaad #. imar who said that the 1essenger of 'llah (saw) said :The one .ho find a lost property let him 4et it .itnessed y t.o 5ust .itnesses;’ !'isha narrated that the 1essenger of 'llah (saw) said :There is no marria4e .ithout .ali (a 4uardian) and t.o 5ust .itnesses;’ 'll these te0ts corro#orate that testimony reuires two witnesses. Even though they have not come in a general form, rather each te0t has come specifically for a specific su#$ect #ut their a#undance and the fact they encompass most issues of mu’amalaat (transactions) all of this indicates they are general, or they are the origin. -r that the su#$ects, which have #een mentioned at least, and the su#$ects that include the financial rights, tasarrufaat , contracts, confiscation, and lost property all of these are the great ma$ority of the transactions (mu’amalaat ). This indicates that the minimum num#er (nisa#) of testimony is two witnesses. This is #ecause the legislator mentioned a num#er with regards to testimony, ie it assigned an amount regarding the testimony, like the amount of water that does not pollute, and the amount of gold and silver that o#liges 9akah etc. The amounts in the Sharee’ah are either to prevent the increase and decrease, such as “/he adulterer% woman or man% lash ea(h one of them eighty lashes. ; 3A= A8 The amounts might also to prevent the decreas #ut not the increase, such as >+f the .ater amount reached ,ullatayn ( t.o 5u4s)? then it .ill not carry impurity (khaath).; They might also #e for preventing the increase #ut not the decrease, such the greates time of menstruation. The amounts in the Sharee’ah have their own indication. In other words they have their mafhoom (import) so the mafhoom of num#er is used. The num#er is the counted amount. Therefore, the fact that a num#er has #een mentioned in these te0ts means it is the num#er for testimony. So here it is to prevent the decrease as opposed to the increase, $ust as it is the hadith :.hen the .ater reaches ,ullatayn (t.o 5u4s)...’ It is like the saying of the 1essenger (saw) regarding the num#er (nisaa#) of gold and silver >+f you have a hundred dirhams and a year has passed over 13
them? then you should pay five dirhams; But there is no oli4ation on you to pay until you have t.enty dirhams;@ 1entioning the amount of hundred and twenty is mentioning of the amount that prevents the decrease #ut not the increase. In the same way mentioning of the two witnesses is mentioning of the minimum num#er of witnesses, which prevents the decrease #ut not the increase. Therefore, the minimum amount (nisaab) for testimony is two witnesses. This is what has #een indicated #y the colla#oration of the te0ts from the Bitaa# and Sunnah. Type of .itnesses The one who studies the Sharee’ah te0ts from the Bita# and Sunnah finds that the legislator had clarified the witnesses with different descriptions. e (swt) clarified that they are two men. e (swt) said And get two witnesses out of your own men.’ 3+aarah A yes? 6 /essen4er of AllahG ’ 'lso he clarified that it is a wittness and the plaintiff’s oath. I#n !'##as narrated !that the /essen4er (sa.) 5ud4ed on the asis of a .itness and an oath.’ Ca#ir narrated !that the 9rophet (sa.) 5ud4ed on the asis of a .itness and an oath .’ Ca’far #. 1uhammad narrated from his father who narrated from the 'meer al*1u?mineen 'li #. '#i Tali# :that the 9rophet (sa.) 5ud4ed y the testimony of one .itness and the oath of the plaintiff? and Ameer ul-/u’mineen 5ud4ed .ith that in +ra,; ’ 2a#ee’ah #. Suhayl #. '#i Salih narrated from his father who narrated from '#u urayrah who said ! Allah’s /essen4er (sa.) 5ud4ed y the oath and one .itness .’ Sarru narrated that !the /essen4er of Allah permitted the testimony of a man and the oath of a plaintiff;’ '9*Nu#ay# #. Tha’la#ah narrated a story in which he mentioned that he (saw) said to him !Do you have proof that you emraced +slam efore you .ere captured at those days2 + said> es; !e said> 1hat is your evidence2 + sad> amura? a man from Bani Al-:Anar? and another man? .hom he named; The man testified? ut amura re5ecte to testify; The /essen4er of Allah (sa.) said> !e re5ected to testify to you? so do you take an oath eside your other .itness2 + said> es; o he sou4ht my oath? and + 4ave an oath in the name of Allah that .e emraced +slam at such and such day .’ Then he completed the story saying !That the rophet acted upon the witness and the oath.’ '#u !"mer 'n*4amri said a#out this hadith !+t is hadith hasan.’ 'll of these te0ts clarify that the te0ts of the egislator are not restricted to mentioning the two witnesses only, #ut he clarified that the two witnesses have to #e men or one man and two women, or women euivalent to two men, whereevery two women are euivalent to one man this is #eside a single witness and the plaintiff’s oath. These details are a clarification of the two witnesses. This is #ecause the e0pression of !two witnesses’ is mu'mal (am#ivalent) like the word Za$ah, Salah, 0a'' etc. The te0ts came to e0plain that the two witnesses are two men, one man and two women, four women or one witness and one oath #y the plaintiff. This is a clarification of the nature of the two witnesses, ie clarification of their minimum num#er (nisaab). Therefore, the nisaab of testimony is two witnesses. -ne of the two witnesses is #y oath, #ecause it is considered part of testimony and he can #e two women, #ecause the hadith has stated they are euivalent to one witness. 's for the oath #eing a witness, this is #ecause it has #een esta#lished #y the te0t of the :ur’an. The :ur’an has called the oaths of spouses a testimony ( shahaadah). e (swt) said ‘let the testimony of one of them be four testimonies +i.e. testifies four times, by All8h that he is one of those who s*ea$ the truth.’ 3'n*4ur J8 Thus, the oath is a testimony and its assumes the position of a witness. So the oath with another witness will make two witnesses. 's for two women #eing euivalent to one witness, this is #ecause the 1essenger (saw) said !The testimony of t.o .omen is e,uivalent to the testimony of one man .’ So, four women witnesses constitute two witnesses. rom this it appears that no matter how much the nature of the two witnesses may differ, they are still two witnesses. &hat has come with respect to the second witness is to clarify the nature of the witness and not another nisaab. Therefore, the types of two witnesses are four two men, a man and two women, four women, or one male witness and one oath of the plaintiff. -ne might say that 'llah (swt) mentioned the nisaab of the shahadah as #eing two men or one man and two women #y the clear te0t e (swt) says ‘And get two witnesses out of your own men. And if there are not two men +a"ailable,% then a man and two women.’ 3AA
#ut it did not come with a new hu$m different to the first hu$m. 2ather it #rought the first hukm and then added to it another hu$m. The hadith that includes an addition to what has come in the :ur’an is not considered an a#rogation. 2ather it is an independent addition with an independent hu$m. If its sanad is proved authentic, then we must adhere to it. '#rogation is to lift a ruling, #ut there is no lifting in the addition of a rule. The addition is like the specification. Cust as specification of the Bita# and Sunnah is allowed, then so is the addition. The evidences for this are many. &hen 'llah (swt) mentioned the women to whom marriage is prohi#ited > And whoe"er is beyond what is mentioned is allowed to you.; 3= A=8 'nd the Sunnah came and prohi#ited the marriage at the same time to a woman and her maternal aunt. 'llah (swt) said > And the thief% male and female% ambute their hands.) 37 H<8 Then the Sunnah came to renounce am#uting what is su#$ect to decomposition% decay (fassad ), and so on and so forth. Therefore, acting upon the hadith the acceptance of one witness and oath of the plaintiff is o#ligatory whilst still acting upon the ayah. So the ayah and ahadith clarify the types of witnesses. This is the minimum num#er for testimony, which is two witnesses. 'nd the following are the types of witnesses allowed two men, a man and two women, four women, a witness and an oath #y the plaintiff. The plaintiff’s oath is considered a witness, #ecause 'llah (swt) has called this testimony and made two women euivalent to one man due to the authentic 0adeeth. This minimum num#er along with its types o f witnesses is the nisaab for testimony in all cases with no difference #etween societal transactions (mu’amalaat ) and punishments (!uqubaat ). It is the nisaab in cases of theft, killing, drinking of alcohol and other hudood . It is the nisaab of testimony in murder, #roken nose, fractured head, and other types of 'inayaat . It is the nisaab of testimony in sale, hiring, $afaalah (guaranty) and other such contracts. It is the nisaab in testimony regarding !aqf , 0ibah and other tasarrufaat , as it is the nisaab of testimony in mu’amalaat . This has come in the te0t regarding contracts and tasarrufaat% and so it includes all transactions ( mu’amalaat ). 's for it #eing the nisaab of testimony in punishments (!uqubaat ), this is #ecause 'llah (swt) did not designate a specific nisaab for punishments e0cept the crime of fornication. If there were a specific nisaab for punishments other than zina then it would have #een clarified as it was clarified for zina. owever, it has not #een clarified and this indicates that the nisaab of testimony in transactions (mu’amalaat ) is the same nisaab of testimony in punishments (! uqubaat ). Especially when the ahadith regarding the acceptance of testimony and the plantiff’s oath has come in general form.This is #ecause their te0t is as follows !!e 5ud4ed y an oath and a .itness’ , !he 5ud4ed y the oath and the .itness’ , !he 5ud4ed y asin4le .itness and the oath of the claimant’, he 5ud4ed y the oath to4ether .ith the sin4le .itness ’, and !he allo.ed the testimony of the man and the oath of the claimant’ . Thus it covers the !uu#aat, for it is !aamm. This applies to other types of witnesses. rom this it #ecomes clear that there is no perfect or imperfect nisaab. 'nd nor is there a nisaab for necessity and a nisaab when there is no necessity. 2ather the nisaab of testimony is the same in all incidents unless the Sharee’ah te0t has #rought an e0ception. In that case the Sharee’ah te0t that clarifies a different nisaa# for a specific incident is followed. The e0ceptions from the Iisaa of the Testimony The legislator has mentioned a nisaa# for testimony, which is more than two witnesses, and it has #rought, in specific incidents, a nisaab that is less than the two witnesses. So the crime of fornication must have four trustworthy witnesses. e (swt) said @And those who a((use (haste women% and *rodu(e not four witnesses% flog them eighty stri*es% and re'e(t their testimony fore"er% they indeed are the 6asiqun +transgressors,@. 3'n* 4ur =8 'nd e (swt) said’!hy did they not *rodu(e four witnesses Sin(e they +the slanderers, ha"e not *rodu(ed witnesses /hen with Allah they are the liars.’ 34ur 5H8 'nd it has #een reported that the rophet (saw) said (! Brin4’ four :.itnesses’? other.ise :there .ill e’ a hadd at your ack .) These evidences are e0plicit in that the nisaab for testimony in zina is four witnesses. These adillah (evidences), which have stipulated a specific nisaab for a specific su#$ect matter, which is the su#$ect of fornication (zina), have e0luded the nisaab of fornication from the general nisaab% and assigned to it a specific nisaab. The adillah (evidences) were not satisfied with having two witnesses, rather they have stipulated four witnesses. So this nisaab is for zina only, and it does not cover anything else, #ecause it has come for a specific su#$ect matter, which is zina% and hence it is specific to that su#$ect. This nisaab is more than the nisaab of testimony. So this is the nisaab for the su#$ect for which it has come, which is zina. The egislator has come with that which is less than the nesaab of testimony, ie less than two witnesses in specific su#$ects. 'n e0ample would #e the sighting of the moon where it is allowed to have a single 1uslim witness. This is due to what was narrated on the authority of I#n !'##as that ( A edouin came to Allah’s /essen4er (sa.) and said> + have seen the moon (ie of Ramadan); !e (sa.) asked> Do you ear .itness that there is no deity save Allah2 !e said> yes; !e said> Do you ear . itness that /uhammad is the /essen4er of Allah2 !e said> es; o he said to Bilal> 6 Bilal? stand and 4ive the azaan to the people so that they fast tomorro. .) This is a dalil to say that in the sighting of the moon, whether it is the moon of >amadan or Shawwal , it is allowed to have one 1uslim witness. 'nother e0ample is the areas where only women are familiar with. In thess areas, it is allowed to have one woman witness, due to what has #een narrated via a9*Nuhri !+t has ecome (madat) unnah that the testimony of .omen is allo.ed in matters .here they alone are familiar .ith.’ Even though the e0pression !madat sunnah’ does not indicate that this is a hadith since the word Sunnah can mean the practise they followed. owever, when this is linked to a sound hadith, then it is 15
taken into consideration. This report has #een linked to a sound hadith which has #een narrated #y !"#ah #. '#i arith. I#n 1ulaykah who said I heard it from !"#ah #. '#i arith #ut I memorise #etter the hadith of !"#ayd, he said (+ married a .omen? and then a lack .oman came and said? :+ suckled you and your .ife; o + .ent to the /essen4er of Allah (sa.) and said> 6 /essen4er of AllahG + married a .oman? and then a lack .oman came and said> :+ suckled you and your .ife’? and she is lyin4; !e turned his face a.ay from me; + came to him from the side of his face and said she is lyin4; !e said> !o. canyou marry her after she (the lack .oman) claimed she suckled oth of you2 eave her;) In another narration from !"#ah #. '#i arith, (that he married 7mm ahya? the dau4hter of Au +ha; A lack slave .oman came and said> :+ suckled you and your .ife;’ !e sad> + mentioned that to the 9rophet (sa.)? ut he turned his face a.ay from me; + turned a.ay? then + mentioned it to him; !e said> !o. can you marry her after she (the lach .oman) claimed she suckled oth of you2 o he forade him from her;) In this hadith% the rophet (saw) instructed the man to leave his wife #ased on the testimony of a single woman that she had suckled them. Since he said to her !leave her’ and in another narration !so he forade him from her .’ It came in a third narration !There is no 4ood for you in her .’ &hen this is linked with the hadith !madat as-sunnah’ that came #efore, it #ecomes clear that it is allowed for the single woman to give testimony in matters only women are familiar with. This is #ecause it has #een proven that a single woman can #e a witness in suckling. The ! illah here is the fact that only women are acuainted with the su#$ect of suckling. This illah has #een deduced #ecause the su#$ect matter of the testimony is suckling, and from the hadith !+t has ecome unnah that it is allo.ed for .omen to testify in matters .here only .omen are familiar .ith;’ rom this, we understand that it is permissi#le for a single woman to testify in suckling, #ecause only women are acuainted with these matters. This is supported #y another hadith% which is the hadith of 1u$ahid, Sa’eed #. 1usayya#, Sa’eed #. Cu#ayr, !'taa’ #. '#i 2a#ah, and Tawus (ra) who said !The /essen4er of Allah (sa.) said that the testimony of .omen is allo.ed in matters .here men can not have access to ;’ This is also supported #y what was reported #y u9ayfah !that the /essen4er of Allah (sa.) allo.ed the testimony of the qaabilah (mid.ife) on childirth; !e said> the testimony of .omen is allo.ed in matters .here men can not have access to .’ 'll of this indicates that the ahadith do not intent suckling or child#irth specifically. 2ather they are reasoned #y an !illah in relation to matters only women are familiar with. Thus, the testimony of a single woman is the nisaab of testimony in matters only women are familiar with. Therefore, the legislator has e0cluded from the nisaab of testimony three matters irstly, Zina for which the legislator gave minimum num#er greater than the nisaab of testimony second, sighting the moon and thirdly, those matters only women are familiar with. ere the nisaa# is less than the nisaab of testimony. So the nisaab of the first is four witnesses, in the second one man, and in the third one woman. The Testimony of 1omen e (swt) said ‘And get two witnesses out of your own men. And if there are not two men +a"ailable,% then a man and two women% su(h as you agree for witnesses% so that if one of them +two women, errs +tadilla,% the other (an remind her.’ 3+aarah A
Thus, the testimony of women is accepted in all cases%claims, whether they are part of the transactions ( mu’amalaat ) or punishments (!uqubaat ). The testimony of women is allowed in hudood and 'inayaat% $ust as it is allowed in contracts and tasarrufaat% due to the general form (!umoom) of the ahadith2 and nothing has come to specify them to other than the punishments. 's for what was narrated that Shurayh (rahimahullah) said !The testimony of women raeagding hudood is not allowed.’ This is the speech of Shurayh, and not a hadith% and so the speech of Shurayh is not evidence. 2ather it is the opinion of a mu'tahid like the opinion of '#u aneefah, and so cannot #e taken as a daleel . 1oreover, it has no evidence form the te0ts, whether from the Bita# or the Sunnah. 's for what has #een reported from '9*Nuhri that he said !It has #een the practice ‘madat us-sunnah’ since the time of the rophet and the two $hulaafaa’ after him not to accept the testimony of the women in hudood .’ 'nd in another narration !not to accept the testimony of the women in hudood , marriage and divorce.’ This hadeth is munati’ (there is #reak in the chain) via Isma’eel #. !'##as who is Fa’eef and therefore it cannot #e cited as proof. 'lso the saying !madat us-sunnah’ does not mean the word Sunnah is the Sunnah of the 1essenger of 'llah (saw). 2ather it can #e the Sunnah of the righteous Bhulafaa’ or it can mean the way ( tareeqah). 'l*!Ir#aad narrated that the 1essenger of 'llah (saw) said :Adhere to my Sunnah and the Sunnah of the Ri4htly Cuided *aliphs? ite onto it .ith your molar teeth;’ The action of the righteous Bhulafaa’ has #een called a sunnah% which indicates that it means way ( tareeqah). In the hadith of udayn #. 1un9ir who narrated from 'li regarding the flogging of waleed #. !"#ah that he ('li) said The rophet (saw) gave forty lashes, '#u +akr gave forty and "mar gave eighty, and each of this is Sunnah.’ The action of '#u +akr, "mar and 'llah’s 1essenger has #een called a Sunnah, which indicates that he meant a way (tareeqah). Since it has #een narrated that 'li himself said ( + .ould not e0ecute a hadd a4ainst any ody .ho then dies? and feel ad aout it e0cept the drinker of alcohol; +f he died + .ould have paid his lood money; This is ecause the /essen4er (sa.) did not enact it : lam yasunnah’ ); !e says in this hadith :lam yasunnah? ie he did not enact it’; +n the first hadith he says> : and each of this is sunnah’.The two ahadith are sound, which indicate that #y Sunnah he did not mean the action of the 1essenger (saw). 2ather what was meant is the way (tareeqah). If the word Sunnah is used in an a#solute%unrestricted form without a qareenah , then it means way (tareeah). The e0pression !madat us*sunnah ’ does not indicate that what has #een transmitted is a hadeeth unless there is a qareenah to indicate this. &hat '9*Nuhri reported !It has #een the practice ( madat us-sunnah) since the time of the prophet and the two Bhulafaa’ after him, not to accept the testimony of the women in hudood , marriage and divorce’ is not taken as a hadeeth #ecause there is no qareenah to indicate this. So from this perspective, the use of this report ( athar ) as evidence is disproved. There is no daleel to e0clude the hudood% in terms of the permissi#ility of women’s testimony. Therefore, it is allowed for women to testify in hudood and 'inayaat% due to the generality of the evidences, and #ecause there is no sound hadith to e0clude hudood and 'inayaat . The te0ts have also indicated the permissi#ility of women testifying in hudood alone without men in all cases. This is #ecause the saying of the 1essenger !+s not the testimony of t.o .omen e,ual to the testimony of one man2 ’ is general (!aamm) for any woman or man. 'nd his (sw) saying :The testimony of t.o .omen is e,ual to the .itness of one man.’ is unrestricted (mutalq) and encompasses all claims. It includes any cases, whether there were men and women witnessing, or $ust women. There is no te0t to prevent the testimony of women only. Therefore, it is allowed for women alone to testify in all cases%claims. Those .hose Testimony is not accepted In origin the testimony is re$ected if there is an a llegation due to the saying of the 1essenger ! There is no testimony for the one accused’, #ecause his report can #e true or false. It will #e considered a proof if his truthfulness is outweighed. If there appears to #e a cause to accusation, then truthfulness will not #e outweighed. owever, not every accusation will cause a testimony to #e re$ected. This is #ecause someone might find any accusation to defame the testimony of a witness, so as to get it re$ected. Therefore, the accusation that causes a testimony to #e re$ected must #e identified. &hat defines the accusation is the Shar’ and not the mind, #ecause the Shar’ has stated that in origin the 1uslim’s testimony is accepted. It rather considered the testimony accepted, in origin. So re$ecting it is contrary to the origin and what is going contrary to the origin reuires a proof to esta#lish this. This proof cannot #e anything other than a Sharee’ah te0t, #ecause re$ection is a Sharee’ah rule and hence reuires a Sharee’ah daleel. This is #ecause what the Sharee’ah has esta#lished in origin reuires a Sharee’ah te0t that proves it to #e different to the origin. Thus, no testimony is re$ected unless it is an accusation mentioned #y a Sharee’ah te0t. Thus, a testimony is not re$ected due to an accusation originating from the mind or custom, #ecause they are of no value. 2e$ection of the testimony is a hukm shar’i, therefore there must #e a Sharee’ah te0t from the Bita# and Sunnah to indicate that, i.e. there must #e a Sharee’ah te0t that states the accusation #y which the testimony of a witness is re$ected. Those whose testimony the Sharee’ah te0t has mentioned we should re$ect are the untrustworthy people (ghayr !adl), on whom the add of defamation (a9f) has #een applied, traitors (whether male or female), those har#oring hostility, servant who is dedicated for service, , a son for a father and vice versa, and a woman for her hus#and and vice versa. It is not allowed to accept the testimony of all these people due to the te0t. 's for re$ecting the testimony of untrustworthy people, it is due to is (swt) saying ! And ta$e for witness two 'ust *ersons of you.’ 3TalaA8 ‘/hen ta$e the testimony of two 'ust men of your own fol$.’ 3al*1aa?idah56J8 'nd due to is (swt) saying > 4 you who belie"e 3f an e"il-li"er +faasiq, bring you 17
a news "erify it.; 3=@ J8These te0ts have stipulated that the witness #e a trustworthy (!adl). The meaning (mafhoom) of them is that the testimony of the untrustworthy people is not allowed. reviously, we have mentioned the definition of trustworthy (!adl) as #eing the restraint from what the people consider as deviation from istiaamah. Thus, whoever does not restraint himself from what the people consider deviation from istiaamah would #e not !adl so his testimony is not allowed. 's for re$ecting the testimony of traitors, male or female, people who har#or hostility, the servant who is dedicated for service , this is due to what 'hmad reported from !'mr #. Shu’ay# from his father, who narrated from his father that the 1essenger (saw) said !The testimony of a traitor (male or female) is not allo.ed and nor someone .ho has 4hamr (hostility) for his rother? and nor is the testimony of the ,aani’ allo.ed for the family? and the ,aani’ is .ho the family spends on him .’ 'nd he (saw) said :The testimony of one disputant a4ainst another disputant is not accepted;’ The traitor’s testimony is re$ected and also the one who har#ors hostility. So the testimony of an enemy is not accepted against his enemy due to the accusation. 'lso the testimony of the aani’ is re$ected, and he is the servant who is dedicated to the service. e is the one called al*aani’, which the hadith #y saying !and al*aani’ who the family (whom he srevse) spend on him’, ie the servant who is dedicated to service. 's for re$ecting the testimony of the son against the father and vice versa, this is due to what isham #. !"rwah from "#ay narrated from '’isha that the rophet (saw) said ! The testimony of a traitor (.hether man or .oman) is not accepted and nor the one .ho harors hatred (4hamr) for his rother and nor the son for the father and the father for the son;’ The word al*Phamr means hina, shahnaa. ina means hid (hatred). In this hadith he (saw) mentioned the traitor, the one who har#ours hatred and also the son’s testimony for his father and vice versa. +ased on this hadith, it is not allowed for the son to testify for the father, whether son or daughter, and the father cannot testify for the son whether father or mother for #oth are parents. 'lso the meaning present in the father, ie the accusation is also present in the mother. 's for re$ecting the testimony of the wife for the hus#and and vice versa, therecogni9ed uaaha who are considered to #e mu$tahideen mentioned the hadith of isham #. !"rwah. It has #een reported #y !'mr #. Shu’ay#, from his #rother from his grandfather who added :;;and there is no testimony of a .ife for her husand and testimony of a husand for his .ife.’ ie that !'mr #. Shu’ay#, from his #rother from his grandfather who mentioned that the 1essenger (saw) said :;;The testimony of a .ife for her husand and testimony of a husand for his .ife is not allo.ed .’ The uaha’s acceptance of this narration (riwaayah) with this addition makes the hadith asan and so it is used as proof. Therefore, it is an evidence to say that it not allowed for the wife to testify for her hus#and and vice versa. 's for re$ecting those on whom the hudood had #een applied, this had #een mentioned in the two ahadith the hadith of isham #. !"rwah and the hadith of !'mr #. Shu’ay#, from his #rother, from his grandfather ! Ior the one .ho has een lashed due to a !add (punishment);’ ie the 1essenger (saw) said !the testimony of the one .ho has een lashed due to a !add (punishment) is not allo.ed .’ These are the evidences regarding those people whose testimonies are not allowed. -ther than these people the testimony is allowed if there is no te0t to the contrary. 's for what narrated #y !'isha that the 1essenger of 'llah (saw) said !The testimony is not allo.ed of a traitor (male or female)? the one .ho harors hatred for his rother? dhaneen(suspicios) and the relative .’ This hadith is weak (da’eef) since it has La9eed #. Niyaad ash*Shaami, who is da’eef. Tirmi9i said this hadith of 9uhri is not known e0cept from this line of transmission and nor is its isnaad sound in our opinion. Thus, the hadith is not used as proof. So the testimony of one relative is allowed for and against another relative e0cept #etween father and son. 's for what has #een narrated #y '#u urayrah that he heard the 1essenger of 'llah (saw) said !+t is not allo.ed for a Bedouin to testify a4ainst a person from the villa4e .’ This does not mean the +edouin’s testimony is re$ected without restriction. This is #ecause the te0t is specific (khaas), since he said the person from a village. rom this we deduce that there is an !illah for not accepting it, which is the fact that he is a +edouin, ie those +edouins who live their whole life in the desert. The fact that the one testified against is a villager, so the +edouin knows nothing a#out the village or a#out him , ie a#out the villager. In other words, it is the fact that he is ignorant of the state of the one testified against. So the !illah of re$ection is ignorance and not the fact that he is a +edouin. The evidence to say the testimony of a +edouin is allowed is that !the rophet (saw) accepted the testimony of a +edouin in sighing the moon (of 2amadan). So the 1essenger’s acceptance of the +edouin’s testimony is a proof of its permissi#ility. This indicates that what’s intended #y the hadith ! +t is not allo.ed for a Bedouin to testify a4ainst a person from the villa4e,’ is not the fact that he is a +edouin, #ut due to his ignorance of the village and the villager. 's for what has #een narrated !that 'li #. '#i Tali# (ra) testified for atimah (ra) in front of '#u +akr as*Siddee (ra) and with him was "mma 'yman. '#u +akr said to him !if a man or another women testified with you , I would have $udged in her (fatimah) favour.’ atimah (ra) was angry with '#u +akr ever since he assumed the post of the Bhilafah, especially after he refused to give her the land of adak. 'nd 'li was angry with '#u +akr and did not give him the +ay’ah until after ati,ah died (ra). rom where then came the testimony of 'li for atimah with '#u +akrK If this was regarding the issue of adak, then it is not a right with a defendant . '#u +akr recogni9ed the land was inheritance of the 1essenger, #ut he 18
cited the saying of the 1essenger (saw) as proof ! 1e? the 9rophets .e are not inheritd from ’; If this was in some other matter, then it has not #een reported that atimah had complained against anyone to '#u +akr. The actual incidents re$ect this narration, and so it is re$ected #y meaning (diraayatan). Even if the report was sound, 'li’s action is not a proof, #ecause it is the opinion of a saha#i and the opinion of a saha#i is not proof, #ecause the proof is only what the revelation (wahy) has mentioned or what the revelation indicated, ie the Bita# and Sunnah, and what the kita# and Sunnah indicated #y way of evidences. 1oreover, this report contradicts the esta#lished hadith of isham. So it is re$ected due to its contradiction to a sound hadith. 's for what was narrated via '#u !"#aydahQasan #. !'9i# Qhis grand father Shu’#ay# #. Pharada who said I was sitting with Shurayh, when 'li #. Baahil, a woman and her opponent came to Shurayh. 'li #. Bahil who was her hus#and testified for her. 'lso her father testified for her, and Shurayh allowed them to give their testimony. The opponent said +ut this is her father and this is her hus#andO Shuraysh said Fo you know anything that invalidates their testimonyK The testimony of every 1uslim is allowed.’ This is not a daleel, #ecause it is the $udgment of a :adi. It is not a Sharee’ah evidence and hence cannot #e cited as proof. erhaps the hadith was not authentic (saheeh) for Shurayh or he did not know of it and so he $udged in this manner. If he knew a#out #oth of the two ahadith then he would not have given such a $udgment. This is #ecause the hadith of isham e0plicitly states the prohi#ition of a father giving testimony for his son. 'nd the hadith of !'mr #. Shu’ay#, which the uaha cited as proof, also states clearly the impermissi#ility of a wife testifying for her hus#and and vice versa. ow can we take the saying of Shurayh and re$ect what has #een proven to #e from the 1essenger of 'llah (saw)K Therefore, we re$ect the action of Shurayh, the :adi and take the saying of the 1essenger of 'llah (saw). 1hen does the untrust.orthy person ecome trust.orthy such that his testimony is accepted2 Trustworthiness (al*!adaalah) in testimony is a #asic condition. The one who is not trustworthy, his testimony is re$ected. owever, when the asi or the person whose testimony has #een re$ected #ecause he was not !adl #ecomes trustworthy, his testimony is accepted. This is when the trustworthiness is reali9ed in him and he has not #een previously $udged as fasi, ie a add punishment has #een applied on him or his testimony has #een re$ected. 's for the one whose testimony has #een re$ected or has #een sentenced to a add punishment, in order to #e considered $ust and his testimony to #e accepted, it is stipulated that he has repented and changed his condition, and a year must pass so that his repentance can #e seen and it is clear that he has reformed himself. 's for the repentance (taw#ah), since anyone who commits a sin is #ound to make Taw#ah, then when he makes it 'llah accepts it from him as evidenced #y the saying of 'llah (swt) ‘And those who% when they ha"e (ommitted 6ahishah +illegal se1ual inter(ourse et(., or wronged themsel"es with e"il% remember Allah and as$ forgi"eness for their sins2 - and none (an forgi"e sins but Allah - And do not *ersist in what +wrong, they ha"e done% while they $now. 6or su(h% the reward is 6orgi"eness from their Lord.’ 3'ali !Imran 5H7*5HJ8 'nd e (swt) said ‘And whoe"er does e"il or wrongs himself but afterwards see$s Allah’s 6orgi"eness% he will find Allah 4ft 6orgi"ing% 5ost 5er(iful.’ 3'n*4isa 5568 This indicates that Taw#ah from all sins are accepted. 's long as this Taw#ah does not include a right to 'llah, which he must discharge or if it is not related to a right of another human #eing, then it is enough to feel remorse and to make resolve that one would not repeat the sin. If the right of 'llah, which he must discharge, such as missing the salah and not paying 9akah, or if the right related to another human #eing, such as usurping someone property or hitting a person, then the Taw#ah here would #e #y feeling remorse and resolving not to commit the sin again and leaving the un$ust act that was committed, ie such as praying the salah, paying the 9akah or reim#ursing the person from whom the money was usurped in like or value. 'nd he should give himself up to the one he has commited aggression against so that he can take revenge. In this way the repentance would have #een accepted from him and he would have given it its due. This is in terms of the a cceptance of the Taw#ah. 's for when a person can #e considered to have rectified himself to give testimony, ie in terms of reconsidering him trustworthy whose testimony is accepted and guardianship (wilayah) is valid. It is not enough $ust to have taw#ah with remorse and to leave the un$ust act. 2ather one year must pass in which his repentance must #e apparent and it must #e clear that he has reformed himself #efore his testimony is accepted or he is accepted to do a work in which trustworthiness is stipulated as a condition, such as in the $udiciary for e0ample. 's for the evidence that allows a person to #ecome $ust after his taw#ah and reform and the fact that his testimony is accepted, this is #ecause of is (swt) saying ‘71(e*t those who re*ented thereafter and did righteous deeds.’ 3'n*4oor =8 'fter is (swt) saying’ ‘and re'e(t their testimony fore"er.’ 3'n*4oor =8 The full te0t of the ayah is as follows ‘And those who a((use (haste women% and *rodu(e not four witnesses% flog them with eighty stri*es% and re'e(t their testimony fore"er% they indeed are the 68siq:n +liars% rebellious% disobedient to Allah,. 71(e*t those who re*ented thereafter and did righteous deeds% +for su(h, "erily% Allah is 4ft-6orgi"ing% 5ost 5er(iful.’ 3'n*4oor =*78 'llah (swt) said ! 71(e*t those who re*ent .’ 'fter saying !and re'e(t their testimony fore"er .’ 3'n*4oor =8 &hen the e0ception is followed #y words arranged together then it refers to everything that came #efore unless there is a daleel to the contrary. Such as the one he sa ys his wife is divorced, his slave is free and he is #ound to make ha$$ unless he enters the house.Thus the e0ception refers to everything (which came #efore). owever, there is a daleel to say that the e0ception does not apply to flogging and so this 19
add punishment is not e0cluded. There is an I$maa’ to say the e0ception does not refer to flogging. So other than flogging everything else is e0cluded. So is (swt) saying ‘71(e*t those who re*ented thereafter and did righteous deeds.’ 3'n*4oor =8 is an e0ception to is (swt) saying ! and re'e(t their testimony fore"er.’ 3'n*4oor =8 So e0cluded from the non*acceptance of testimony are those who have #een flogged due to defamation (a9f) after they have repented. So is (swt) saying ‘71(e*t those who re*ented thereafter and did righteous deed .’ 3'n*4oor =8 is an e0ception from ‘and re'e(t their testimony fore"er.’ 3'n*4oor =8 Thus e e0cluded from re$ecting the testimony from those punished #y flogging due to a9f those who repented, when e e0cluded ‘71(e*t those who re*ented thereafter and did righteous deed’ from is saying !and re'e(t their testimony fore"er .’ This means it allowed for the trustworthiness (!adalah) to return to someone who has #een considered fasi due to a add punishment #eing applied on him, if he has repented and reformed himself and then it is allowed to accept his testimony. 's for the evidence that repentance on its own is not enough #ut rather it must #e esta#lished that the person has reformed himself. It is due to is (swt) saying ‘71(e*t those whodid righteous deeds +aslahoo,’% 3'n*4oor =8 after is (swt) saying !those who re*ent’ since the complete ayah says ‘71(e*t those who re*ented thereafter and did righteous deeds.’ 3'n*4oor =8 This indicates that it must #e esta#lished that the person has repented and reformed himself. This is #ecause the waw al*!'tf (con$unction), ie !and’ means to add one thing with another. -ne needs to esta#lish #oth things, ie repentance and self*rectification. 's for the fact that a year must pass in which the repentance can #e seen and it can #e clear he has reformed himself. This is #ecause the meaning of the a yah !did righteous deeds +aslahoo)’ indicates that the rectification must #e reali9ed with repentance. e e0pressed the word !islaah’ (rectification) in the past tense indicating reform has #een reali9ed., ie e0cept those who reali9ed the repentance and self*reform. The reali9ation of self*rectification inevita#ly reuires a period of time in which one can see this has #een achieved. The does not specify a period of time #ut indicates the reali9ation of self* rectification and this reuires time. 's for the time period #eing a year, it is #ecause when !"mar flogged Sa#eegh and $ailed for asking a#out 'dh*Fhaariyaat and 'n*4aa9i’aat, he ordered that he is #oycotted till he knew he repented. So he ordered that he he is not talked to for one year. This indicates one year is needed to reali9e the reform (salaa) #eside the repentance. &hen it was proved to !"mar that Sa#eegh repented, he wanted to verify his reform was reali9ed, so he determined one year for that. 'lthough the action of "mar is not a Sharee’ah evidence #ut one can take it into account in the a#sence of a daleel. Self*rectification is a matter, which is known from the reality. 'nd the reality is that man reuires passing the four seasons of a year #efore one can know his condition in terms of his inclinations and desires. That is why a year of evaluation is closer to the reality. Therefore, repentance on its own is not enough to say that someone has regained his trustworthiness or that he can #e reconsidered as #eing $ust. 'nd the repentance must #e accompanied #y self*reform after a year has passed. If that happens then the testimony of a person, who previously has either had a add punishment applied on him or his testimony was re$ected due to the loss of !adaalah, is accepted. is guardianship would then #e valid and he would undertake the task in which !adaalah is stipulated. +t is not valid for the 3adi to 4ive a 5ud4ment ased on his kno.led4e It is not allowed for the :adi to $udge%pass a verdict according to his own knowledge whether he acuired that knowledge #efore he assumed the post of :adi or after. This is due to what was narrated from !'isha ( that the 9rophet (sa.) sent Au Hahm in !udhayfah as a collector of "akat; A man ,uarreled .ith him aout his sada,ah (i;e; "akat)? and Au Hahm struck him and .ounded his head; !is people came to the 9rophet (sa.) and said> Reven4e? /essen4er of AllahG The 9rophet (sa.) said> ou may have so much and so much; But they did not a4ree; !e a4ain said> ou may have so much and so much; But they did not a4ree; !e a4ain said> ou may have so much and so much; o they a4reed; The 9rophet (sa.) said> + am 4oin4 to address the people in the a fternoon and tell them aout your consent; They said> es; Addressin4 (the people)? the Apostle of Allah (sa.) said> These are people .ho came to me askin4 for reven4e; + presented them .ith so much and so much and they a4reed; Do you a4ree2 They said> Io; The immi4rants (muha5irun) intended (to take reven4e) on them; But the /essen4er of Allah (sa.) commanded them to refrain and they refrained; !e then called them and increased (the amount)? and asked> Do you a4ree2 They replied> es; !e said> + am 4oin4 to address the people and tell them aout your consent; They said> es; The 9rophet (sa.) addressed and said> Do you a4ree2 They said> es .’ The angle of deduction in this hadith is that these people came to the 1essenger (saw) in his capacity as ruler seeking a $udgment of revenge i.e. they demanded as the guardians of the victim that the murderer #e killed. The 1essenger (saw) tried to change their demand to #lood money (diyyah) and to grant pardon. They re$ected when he offered them an amount of money #ut accepted his second offer. owever this acceptance was in front of him only and there was no testimonial proof that they had accepted. If it was allowed for the adi to give $udgment #ased on his knowledge then the prophet would have accepted their pardon and $udged that they are awarded the amount they accepted. +ut he (saw) informed all the people that they had accepted so that the people can #ear witness to what was accepted. &hen they re$ected that they had given their acceptance he (saw) agreed to their re$ection. e did not $udge on the #asis of his knowledge that they had accepted the offer #efore him. That is why he went #ack and increased the amount he offered and then informed the people where the people said !yes. 'nd at that point after the people had witnessed their acceptance did the prophet $udge that they are given the amount accepted and he accepted their pardon. So this is evidence to say the :adi cannot 20
$udge #y what he knows. It has #een narrated #y I#n !'##as !that the 1essenger of 'llah (saw) made al*’'$laani and his wife utter the imprecation (i’aan) #etween themselves. Shaddad # al*aad said she is a woman a#out whom the 1essenger of 'llah (saw) said :!ad + stoned someone .ithout evidence (ayyinah) then + .ould have stoned her2 !e said> no; That .oman used to display (such ehavior) after (emracin4 +slam); ’ 'nd in another narration I#n !'##as said !Io? that .oman used to display ini,uitous ehavior after (emracin4) +slam .’ 'lso I#n !'##as narrated that the 1essenger of 'llah (saw) said !had + stoned anyone .ithout proof + .ould have stoned so and so , for mis4ivin4 has appeared in her manner of speakin4? her appearance and the people .ho call on her ’ The angle of deduction in this hadith is that the 1essenger (saw) knew that the woman he mentioned was a fornicator. e knew this from the men who used to visit her, from her appearance and the way she spoke . There is no dou#t that the appearance and e0terior of a prostitute indicates she is a fornicator. So what a#out when one sees men visiting herK I#n !'##as said !he used display ini,uitous ehavior after (emracin4) +slam ’, ie she used to show indecent #ehavior, ie she was ready to commit 9ina. 'll of this is acuired from knowledge. This indicates that the rophet’s saying ! had + stoned anyone .ithout proof + .ould have stones so and so ’ means the 1essenger (saw) knew that she was a fornicator and the hukm regarding her was stoning, #ut due to the a#sence of testimonial evidence (#ayyinah) he did not stone her. This indicates that the :adi does not $udge #y his knowledge. This was followed #y '#u +akr (ra) who did not $udge according to his knowledge. It has #een narrated #y I#n Shiha# from Nayd #. as*Sult that '#u +akr as*Siddee said ad I seen a man violating a imit (add) of 'llah then I would not have taken him (to court) or called some#ody to him unless I had someone else with me.’ It might #e said these evidences are with respect to punishments (!uu#aat) whilst the hadith of !'isha is regarding Cinayaat and the hadith of I#n !'##as is to do with udood. &hen a daleel comes in a su#$ect then it is specific (khaass) to that su#$ect. So these adillah (evidences) are valid to #e evidence that the adi should not give $udgment #y his knowledge in punishments (!uu#aat) #ut not in other su#$ects. 's for transactions (mu’amalaat) they reuire another evidence. The answer to this is that the hadith of !'isha is not to do with punishments (!uu#aat) only #ut it relates to punishments and funds. The 1essenger’s reuest includes pardon instead of revenge and the offer of an amount of money they would accept to take. &hen he (saw) informed the people he informed them a#out their acceptance of a pardon and a sum of money since he (saw) said !These are people .ho came to me askin4 for reven4e; + presented them .ith so much and so much and they a4reed ’ ie they agreed to give pardon for revenge and to take an amount of money offered to them. &hen they re$ected the offer and he increased the amount he went to the people saying ! do you a4ree2’, ie do you accept the amount after the increase. &hen they had agreed after the increase the 1essenger (saw) did not give the $udgment of pardon e0cept after informing the people so that they can #ear witness. e did not also $udge with that amount they agreed to #ecause they re$ected it #efore the people. So he increased the amount and $udged #y it after informing the people and after the people had agreed to it. So the hadith can #e used as evidence for money and punishments and hence it is a daleel to say it is not allowed for the adi to give $udgment #ased on his knowledge. It might #e claimed that the 1essenger (saw) did give $udgment #ased on his knowledge. '#u urayrah narrated that :t.o men .ho .ere disputin4 over a matter came to the /essen4er of Allah (sa.); The /essen4er (sa.) said to the plaintiff> :rin4 your proof’ ut the man .as unale to do this; o he said to the other man> :Take an oath;’ The man took an oath? in the :name of Allah 1ho there is no Cod ut !im ’ that he (the claimant) did not have anythin4 .ith him; The /essen4er of Allah (sa.) said to him> ou have done that; But may Allah for4ive you for the sincerity (ikhlaas) y .hich you said :there is no Cod ut Allah’ . 'nd in the narration of al*akim !IoG ou have it so 4ive ack his ri4ht; Then he said> your testimony that there is no Cod ut Allah is an e0piation (kaffaarah) for your oath.’ 'nd in the narration of 'hmad !Hireel came do.n to the 9rophet (sa.) and said> :!e is a liar; !e has taken the ri4ht of the other; 6rder him to 4ive him his ri4ht and an e0piation for his oath .ill e his kno.led4e that there is no Cod ut Allah .’ This hadith is a daleel to say the adi can give $udgment #ased on his knowledge. The 1essenger (saw) gave $udgment #ased on his knowledge after the occurrence of the Sharee’ah reason that necessitates the re$ection of the case ie the oath. So #y greater reason it is allowed to give $udgment #ased on one’s knowledge #efore its occurrence. The answer to this is from two angles irst This hadith has #een declared defective #y I#n a9m due to '#u Lahyah who is 1usaddi’ al*1u’ari#. It was also declared defective #y '#u atim via the narration of Shu’#ah .Q!'taa #. as*Saa?i#Qal*+akhtari #. !"#aydQ'#u a9*Nu#ayr. 'nd what has #een reported #y 'hmad from the narration of I#n !'##as, its isnaad contains !'taa’ #. as*Saa?i# and many have spoken (against) him. So the chain of the hadith is discredited. So it should #e re$ected and not cited as proof.Second 'ssuming the hadith to #e authentic, however the news given to the 1essenger (saw) in this issue was via revelation (wahy) and whatever comes via revelation is acted upon and the testimonial proof and oath are #oth re$ected. This is #ecause the revelation is the real truth. So one should not make analogy #etween knowledge of something and knowledge of revelation. 1oreover, knowledge via revelation is specific to the 1essenger (saw). It is part of his specificities, so it is not demanded from his "mmah and therefore cannot serve as an evidence for $udgment with respect to the "mmah. Thus, this cannot serve as evidence to permit the $udgment of a :adi on the #asis of his knowledge. It might #e claimed that the 1essenger (saw) $udged according to his knowledge regarding maintenance in the story of ind, wife of '#u Sufyan. The 1essenger (saw) permitted her to take what was enough for her and her children #il ma’roof. e decreed that she and her children were entitled of the maintenance #ecause he knew she was the wife of 21
'#u Sufyan and did not seek proof. This indicates that the :adi can give a $udgment according to his knowledge regarding maintenance. The answer to this is that ind did not complain to the 1essenger (saw) a#out '#u Sufyan for the incident to #e considered a $udical issue. 2ather she asked if it was allowed for her to take the money of '#u Sufyan for he is a miserly man. In response to her uestion he (saw) said :Take .hat is enou4h for you and your children il ma’roof;’ This is an answer to a uestion, ie a fatwa. The statement of a mufti is given depending on the correctness of the words of the one who is seeking a fatwa. So the 1essenger (Saw) did not $udge on the #asis of his knowledge #ut rather answered a uestion. So the hadith cannot serve as evidence to permit the $udge to give $udgment on the #asis of his knowledge. +ased on this, it is not allowed for the adi to give $udgment on the #asis of his knowledge, whether in udood, $inayaat, financial matters, transactions (mu’amalaat) and tasarrufaat, due to the hadith of !'isha and I#n !'##as. 2ather the :adi must demand proof and not $udge without proof. That is why the 1essenger (saw) said ! Brin4 your t.o .itnesses or take an oath;’ 'nd he (saw) said> :ou do not have anythin4 more than this .’
The Kie.in4 and +nspection of the 3adi The :adi is considered a :adi when he is in the $udicial court. If he is not in the $udicial court he is not considered a :adi. This is #ecause the Sharee’ah court i.e. the $udicial court is a condition for the validity (sihhat) of the $udgment (adaa’). !'#dullah #. a9*Nu#ayr said !The 1essenger of 'llah (saw) decided that the two disputants sit in front of him’. This hadith is evidence to say that the adi only gives $udgment in the $udicial court in which #oth disputants sit #efore the $udge. If in this assem#ly%court the adi sees something , he inspects something, some knowledge reaches him or he noticed something, then it is allowed for him to pass $udgment according to his knowledge #ased on this seeing and inspection, #ecause this is knowledge acuired in the $udicial court. . This is like the knowledge attained in testimonial evidence or an oath. This does not come under the $udgment of the :adi #y his own knowledge. 2ather this is :adaa’ ($udgment) due to what has #een proven in a court of law. If he saw a girl in the court and he found her to #e #aaligha (mature) or he inspected some goods in court and found them to #e damaged or faulty and gave a $udgment on this #asis then his $udgment will #e valid. It will not #e a $udgment from his own knowledge #ut one #ased on proof. owever if the adi sees or witnesses something outside the $udicial court and he was sure of what he saw he will not #e allowed to give $udgment #ased on his seeing or witnessing. If he did that then it would #e considered as $udgment given from his knowledge, which is not allowed. If he sees or witnesses something and he is not in court then he cannot give $udgment on it unless that is presented in court and he sees or witnesses it there or a trustworthy testimony proved it. So the seeing or witnessing of a adi is recogni9ed and $udgment is given on its #asis as long as it is presented in court. Seeing is like hearing. So it is not valid that he stones someone claiming that he is a fornicator #ecause he has seen him fornicating. It is not valid also to separate a hus#and and wife #y claiming that he heard the hus#and give tala to his wife’ and nor is it valid to flog someone #y claiming that he witnessed him drinking wine. Indeed one cannot give $udgment on the #asis of what he saw, heard or witnessed, unless it was esta#lished in the $udicial court. This also applies to the testimonial evidence (#ayyinah) , confession or oath. They are not considered if they occurred outside a $udicial court, and so the same applies to seeing, hearing and witnessing. This is with regards to a case where there are two disputants. 's for the issues where there are n o disputants such as the issues of is#ah and violations (mukhalafaat). ere the seeing and witnessing is considered wherever it happened. This is #ecause in such issues it is not stipulated that they #e esta#lished in a $udicial court. They can #e esta#lished at any time #ecause the hadith says !The /essen4er of Allah (sa.) determined that the t.o disputants sit in front of him’; The implicit meaning (mafhoom) of this hadith is that for the single disputant his presence #efore the adi is not stipulated. The :adi may give a $udgment regarding a person while he is standing or lying down. The $udgment may #e passed in the court or the market or elsewhere. The 1essenger (saw) was in the market and he saw dampness in the heap of food. So he ordered that the damp food #e displayed on the top so that the people can see it. So he (saw) came across the heap of food when he was walking in the market. It was on display to #e sold. &hen he o#liged the owner to put the damp food on top that was $udgment that he passed while he was in the market. e was not in the $udicial court, which indicates the $udicial court is not stipulated in matters of the is#a. It also indicates that $udgment #ased on seeing or witnessing is valid. The 1essenger (saw) saw the heap of food, which was dry at the top. 'fter inspecting it he found that the food #elow was damp . 'nd so he gave $udgment on the #asis of what he saw and witnessed. Therefore, seeing and witnessing are correct in matters of the is#ah and it is valid for the :adi to give $udgment #ased on what he saw or witnessed. Similar to the case of is#ah are the violations (mukhalafaat). So any issue in which there is no two disputants then it is valid for the adi to give $udgment #ased on the seeing and witnessing. 22
+nformin4 (ikhar) and in,uiry (istikshaaf) Ikh#aar means to inform a#out a matter. 's for istikshaaf it is the description of a specific reality such as peace of land, factory or house etc. In terms of ikh#aar it is not stipulated to #e on the #asis of certainty, rather it is enough to #e on the least amount of dou#t since it is not a testimony #ut ikh#aar, wher ihk#aar is open to #e true or false. This is #ecause the nature of a report (kha#ar) is that it is open to #e true or false and so this applies to ikh#aar. That is why what is stipulated in testimony is not stipulated in ikh#aar. So no specific num#er is stipulated. The information of one person is enough if the $udge is convinced. If he is not convinced he can ask for more until he is convinced. ikewise it is not stipulated that the person #e $ust (!adl). 'ny person can give information whether he was trustworthy (!adl) or not, and whether it was allowed for him to testify or not. So the father can give information a#out the maintenance of his daughter and the enemy can give information regarding the price of the property of his enemy and so on and so forth. It is not necessary for those who give information to #e e0perts. They may not #e e0perts #ut have knowledge of the matter for which they are giving information. That is why they are considered as informants and not e0perts. So regarding a wife’s maintenance, price of goods, the rent for a house and mahr al*mithl (euivalent dower), etc and such matters, the :adi only gives $udgment #ased on the information he gets from informants and not #ased on their testimony. 'ny matter, which reuires giving information a#out it, it is not valid to ssek a testimony for it. Such a testimony will not #e accepted #ecause the aim is not to prove the claim #ut to assess something and this is achieved #y someone giving information. 'ny matter in which information is reuired then information can #e taken from anyone, and regardless of the num#er of the informants. Similar to ikh#aar is the istikshaaf in terms of it #eing information in which num#er or trustworthiness (!adalah) is not stipulated. owever, the difference #etween ihk#aar and istikshaaf is that ikh#aar does not need the :adi to reuest an informant to discover a matter and inform him of it . 2ather the informant informs the :adi what he knows whether he knew it after the adi reuested from him to find out, such as the mahr al*mithl (euivalent dower).. -r he knew it #efore naturally without any reuest, such as informing a#out maintenance etc. This is different to istikshaaf. The inuiry is not valid unless it is #ased on a reuest #y the :adi. So if some people came and said to the :adi that the house of so and so is lawful or that the land of so and so is sandy and no vegetation grows there or if someone’s factory is out of service etc, without the :adi reuesting an enuiry and inspection, it is invalid to consider this an istikshaaf. This is #ecause the assets (a’yaan) change and they are su#$ect to change all the time. It is not possi#le for the :adi to $udge on the state of an asset unless he has witnessed it or heard the information of someone who has seen it at the time when he informed the :adi. That is why the informant is reuested to witness the asset #efore giving the information. That is why it is invalid to inform what he has inuired a#out unless if he was entrusted #y the :adi to do the inuiry and give the information. This is inorder that the information given to the :adi a#out the reality is the same as at the time of ikh#aar (reporting). That is why he reuires a reuest form the :adi to undertake the inuiry. owever, if the informant investigated the land $ust #efore attending court and he informs a#out his inuiry, then in that case it will #e accepted from him #ecause he is informing a#out an inuiry, which took place at the time of reporting (ikh#aar) and there is no possi#ility of change in it. Documentary record 'llah (swt) said ‘!hen you (ontra(t a debt for a fi1ed *eriod% write it down. Let a s(ribe write it down in 'usti(e between you. Let not the s(ribe refuse to write as Allah has taught him.’ 3'l*+aarah A
's regarding the proof of the signature, if he admits it is his signature then the signature has #een proved, and thus the admission has #een proven, ie his admission that it is his signature is admission of whatever the signed document includes, in terms of money or other issues such as marriage, divorce, ra$’ah, sale, gift and the like. So the admission of signature is an admission of whatever one has signed up to. owever, if he admits he signed the document #ut re$ects what is contained in the document in terms of de#t and the like and this is confirmed #y the plaintiff, then in this case the admission of signature will not #e an admission of what is in the document. e will not #e taken to account for what is in the document. Such as if someone claims such and such de#t against him and he produced a document signed #y him (the defendant) so he admitted he signed the document #ut he said I signed the document to him formally so as to withdraw the amount from the #ank, #ut he has not such de#t against me, and the plaintiff agreed to that, then the admission of the amount is annulled and the claim is re$ected, even if he admitted to signing the document. owever if the plaintiff disagreed to that then there is no value to his words and his admission of signing the document is taken as an admission of what is in the document and there is no value to his re$ection. 4o evidence is reuested from him to prove that what is in the document is #inding on him, #ecause the evidence (#ayyinah) is not sought to prove the denial. 1oreover, the claimant is not reuested to take an oath, #ecause taking an o ath is when there is evidence, which he failed to produce, so he takes an oath. Therefore, in this situation he is not reuested at all to produce evidence, so the claimant does not take an oath, rather he is entitled to what he has in the document once there is an admission of the signature. If he does not acknowledge signing the document and re$ects it or if the signatory is a#sent or deceased, then the document cannot #e acted upon and it will not #e considered a written admission and it will reuire another testimonial evidence to prove the (authenticity of the) document. -ne should not say it is acted upon if his signature is known and famous. This is #ecause if it is well known then it can also #e imitated, 'nd thus it is open to that possi#ility. The well known principle says !if the daleel is open to a possi#ility then its use as proof is invalidated’, and the same applies to signatures. -ne should not say the e0perts should #e #rought to verify the signature #ecause the view of e0perts is like ihk#aar and not testimony and therefore it cannot #e used as a testimonial evidence for the case. owever, if the signature was proven #y a testimonial evidence such as if he #rought two witnesses to testify that he signed the document in front of them and while seeing him, then the signature would have #een esta#lished as his, as it would have #een esta#lished #y his admission. The testimonial evidence here is esta#lished for the action of the signatory and not the signature. 'll documents are treated the same in this regard whether they are financial documents or personal letters. They are known as letters, #euests or recognition of a right etc. 'll signed documents take the ruling of admission (irar) #ecause they are an admission of writing. owever, in respect to ordinary documents, i.e. letters, they must #e addressed to someone, and his address must #e clear with no am#iguity. If they are not directed to someone then they do not constitute a document. 's for telegrams they are not considered written documents even if their origin, which is lodged in the postal department was signed. This is #ecause telegrams are not signed in the presence of a designated employee and he does not check the signatory. That is why they are not considered a written document. owever, if the defendant acknowledged they are his then the $udgment is given #ased on his a dmission and not on the #asis of the telegram. 6fficial documents -fficial documents are written documents arranged #y employees whose $o# is to do so, in accordance with the legal circumstances. They are accepted for $udgment without asking he who produced them to prove what is stated in them and they are acted upon as long as it has not #een proven that they have #een forged. So the informing of a sentence, the witnessing of marriage, the divorce document, #irth certificate etc and other such documents issued #y the official departments of a State are considered testimonial evidences for what is contained in them, without the need of proving what is contained in them and without the need for proving them.'s for copies of such documents, they are not acted upon e0cept after verifying that the picture is according to the original document, which was arranged #y the designated employee. In verifying the copy it is not enough to have the department’s stamp or the signature of the employee who produced it. 2ather the employee needs to himself inform the $udge that this copy is the same like the original document, after it was compared with it. If that does not take place then it is not testimonial evidence. or this matter, it is enough to have one employee #ecause this is ikh#aar and so no specific num#er has #een stipulated. 's for the photocopy of the document, the hukm regarding the document rather than the copy applies to it, #ecause it is like the origin and not a copy of it. owever, in order to verify that this photocopy is like the original document, it must #e compared with the original document via the :adi or his deputy. owever, if the disputant acknowledges that this photocopy is correct and it is the same like the original, then his admission is enough, and thus it is considered a document. Documents issued y civil departments Focuments issued #y civil departments do not have the force of official documents. 2ather they are considered written documents, which are one of the types of testimonial evidences. owever it is valid to rely upon them if the disputant 24
acknowledges it. They will #e considered a proof against the one who presented them. So the #ills%invoices issued #y auditing departments, certificates of national%private schools , tickets from travel agencies etc are considered as ordinary papers and not documents. owever, whatever has #een arranged in themis considered a proof against the one who presented them. This is #ecause presenting them means acknowledgment of the correctness of what is in them if he cited them as proof. If the disputant agreed on them then they #ecome a proof against him. 7nsi4ned ordinary documents -rdinary documents are papers, which have #een written in the handwriting of the individual, or he was the one who dictated the de#t to the clerk, or they are the papers he himself arranged or asked someone else to arrange for him. These are all ordinary documents. These are like the unsigned letters or the trader’s log#ooks% registers etc. These documents take the same ruling as signed documents. So the writing is eual to the signature. So their hukm is that of admission (irar) of writing. If he admits the handwriting is his, or that he is the one who ordered their writing , or he dictated them to a clerk etc, then it is like admission of signature. is admission of this is admission of whatever the written document contains or the thing written in the document, and so he is #ound of it. 'n e0ample of this is the organi9ation and arrangement of registers and the sym#ols%signs used in them according to the technical terms of traders or to the terminology agreed #y those who put it . It applies to them what applies to the signed documents, #ecause handwriting is like signature. E0ternal8forei4n documents -fficial documents issued #y official departments of foreign states, if they are put together according to their legal situations then they are considered as testimonial evidences. This is #ecause it is allowed for the 1uslim to act upon the rules of dar al*Bufr whilst he lives there. If a document is drafted in dar al*kufr, ie #y a foreign state according to its own laws then this document is considered like the document drafted in dar al*Islam. owever, it needs to #e verified to make sure it has #een issued #y the department in uestion. Rerification can #e fulfilled if there were reporting #y those who drew up the document. This can #e either #y an employee giving information in front of a :adi or #efore someone delegated #y the Imam to hear that information. The legali9ation #y official departments for such document is enough as verification. 9resentin4 the document ' document in origin is in the hands of the plaintiff. If it is in his possession then it does not #ecome testimonial evidence unless he presented it to the :adi, and it remained in the case file until the :adi passes the sentence. e is not entitled to restore it #efore the sentence, #ecause it is testimonial evidence (#ayyinah) and such evidence must #e held until the $udgment is passed. Fo you not see that if the witness were to revoke his testimony #efore the $udgment in front of a ruler%$udge then his testimony would #e considered non*e0istent and the same applies to document. owever there is nothing to prevent the person from taking a copy of it. If the document is not in the possession of the plaintiff then it is upon the plaintiff to produce it. If he were una#le to do this then the matter is e0amined . If it was not in the official departments and nor in the possession of the defendant then he is considered una#le to #ring any proof if he did not #ring it To the court). owever if it was in the official departments then the court must decide on #ringing the document form the department in uestion whether it was demanded # y the plaintiff or not as long as he was una#le to #ring it. owever, if it is in the possession of the defendant and the plaintiff reuests o#liging the opponent of presenting it, ie presenting the document, then this matter also needs to #e e0amined. If the opponent admits he has that specific document then he is o#liged to produce it in court. If he does not produce it then his refusal to produce it will #e taken as an admission of the document’s e0istence. Then at that time the document is considered as if it has #een presented #y the plaintiff #ut with the descriptions agreed #y the opponent. If the opponent denies that the document is in his possession then the matter is e0amined. If the plaintiff has a copy then he has the responsi#ility of esta#lishing that the document is with his opponent. If he can’t prove this then the opponent will take an oath. If he takes an oath then the document is re$ected even if its copy was present. If he refrains from taking an oath the :adi will consider the copy with the plaintiff the same as the original, and he will consider it as a testimonial evidence for the case. &ednesday 57 Sha’#aan 5H<7 <%5A%5@J7
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