Al-Qarinah law evidance PDF

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Title: Al-Qarinah (Circumstantial Evidence) 1.0 Introduction

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2.0 Definition of Circumstantial Evidence (Al-Qarinah)

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3.0 The Application of Circumstantial Evidence (Al-Qarinah) as a Tool of Proof

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4.0 The Application of Circumstantial Evidence (Al-Qarinah) in Shariah Court Case in Malaysia

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4.1 Hudud Cases

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4.2 Non-Hudud Case

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5.0 Conclusion

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References

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1.0 Introduction Conceptually, Islamic law also known as the Shariah law aims to protect the wellbeing of mankind in this world and the hereafter. The basic principle of Islamic law is about equal treatment, wisdom, and mercy. The legal principles of the Islamic law was developed based on the precepts of Islam as mentioned in the Al-Quran and according to the As-Sunnah1. Islam is a religion that upholds justice in every aspects of life whilst condemn injustice.

In relation to the precepts of Islam, the Shariah Law perpetrate a significant limitation on the rules of evidence. Evidence in any legal proceeding or trial cannot be circumstantial and must prove the facts relevant for the judgement of the court. This is because a conviction can only be obtained if the most stringent evidential requirements are met. Bias is an element that is against the principles of Islam in legal proceeding. Therefore, in legal adjudication, evidence that constitues the element of bias is not admissible and not consider as relevant for the trial regardless whether the evidence presents in the court of law is against the interests of the person testifying or against the interests of his family and friends.

Briefly, according to the Shariah law, there are two types of crimes and rights with regard to their proof which are ‘Hudud’ and ‘Qisas’ and ‘Ta'zir’ and rights. Additionally, there are several rules of evidence apply in the Shariah Court which are Evidence by Expert (Rayu al-Khabir), Knowledge of the Qazi (Ibnu al-Qadi), Circumstantial Evidence (Al-Qarinah), Oath (Al-Yamin), Admission (Iqrar), and Testimony (Shahadah)2. This seminar paper aims to raise issues in relation to the application of circumstantial evidence (Al-Qarinah) as one of the rules of evidence in Shariah Law by defining the term Al-Qarinah and consequently discussion in relation to the application of circumstantial evidence (Al-Qarinah) as a tool of proof. This paper also explains the position of qarinah in ‘Hudud’ and ‘Qisas’ cases. The current cases in the Syariah Courts of Malaysia will also be discussed to explain the role of Al-Qarinah and its application as a way of proving in Islamic Laws.

1Mohd Munzil,M.et al.,(2015)Qarinah:Admissibility of Circumstantial Evidence in Hudud and Qisas Cases,p.143. 2Lukman,A.M.and Wan Abdul Fattah,W.I.(2012).Al-Qarīnah:Antara Kekuatan dan Keperluan dalam Mensabitkan Jenayah(Zina),p.4

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2.0 Definition of Circumstantial Evidence (Al-Qarinah) Literally, qarinah is an Arabic word derived from the term al-muqaranah means indication, association, connection, linkage, or relation. Based on the Arabic word, qarinah is divided into two types which are Qarinah maqaliah or lafziyyah (based on words metaphor) and Qarinah haliyyah or ma’nawiyyah (based on the surrounding and circumstances)3. In other words, qarinah is an indication which indicates a certain message, whether in the form of circumstances, surroundings, or words.

According to the application of law, Qarinah is the logical reasoning drawn from acts, words, or circumstances which proves the existence or non-existence of another situation or thing. It is also known as presumption which means an inference or conclusion as to truth of some fact in question. Another definition is by the jurists (ulama) that defines qarinah as every clear indication which shows something hidden4. As an example is the case of a witness saw a person leave a house while holding a bloodstained knife in hand. Upon investigation, there was a person inside the house with his throat slit. Based on the concept of circumstances, the person who left the house was the murderer even though no witnesses to testify they saw the person committed the crime. Briefly, qarinah is any facts in any forms which can be accepted as one of the evidence to prove an offence in the Shariah Court.

Qarinah is also defined in the Islamic law practiced in Malaysia. Chapter two of the Syariah Court Evidence (Federal Territories) Act 1997 is ordained for qarinah. According to Section 3 under the Act, qarinah is defined as: “fact connected with the other fact in any of the ways referred to in this Act”5.

However, the precepts listed under the Act are not thorough and therefore when there is a gap or missing part in the argument, the Shariah Court shall apply the principles of ‘hukum syarak’ as mentioned in section 130(2) of the Act6.

3Mohd Munzil,M.et al.,(2015)Qarinah:Admissibility of Circumstantial Evidence in Hudud and Qisas Cases,p.144. 4Ibid. 5Chapter two,Syariah Court Evidence(Federal Territories)Act 1997 6section 130(2),Syariah Court Evidence(Federal Territories)Act 1997

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3.0 The Application of Circumstantial Evidence (Al-Qarinah) as a Tool of Proof From technical perspective, Al-Qarinah constitutes everything which may be used as proof or evidence to establish the existence or non-existence of a fact. In other words, the general meaning of Al-Qarinah is that it include matter that could be touched, seen, heard or felt7. Since the definition of Al-Qarinah is rather broad, certain principles need to be apply in deciding the relevancy of the evidence. This is significant according to the precepts of Islam as measure to ensure the principles of justice is uphold. Therefore, the level of acceptance plays important role in the application of Al-Qarinah.

There are three classifications on the level of acceptance which are strong and conclusive, weak, and doubtful8. Thus, for every circumstantial evidence presents in the Shariah Court, the judge must first determine the level of acceptance associates with the evidence. Only doubtful, strong, and conclusive evidence can be use in the trial whilst weak evidence is rejected before the trial. Generally, qarinah can be accepted by the court by its definition, however, it is not easily accepted as sufficient evidence9. As an example, only admission (Iqrar), and testimony (Shahadah) is admissible in Shariah Court for ‘hudud’ and ‘qisas’ cases because both of the evidence are considered as to reach the degree of certainity. In other words, the punishment of hudud and qisas need to be withdrawn if there is a slight doubt existing in the evidence brought forward.

It is important that the qarinah presents in the trial possess a high degree of certainty. This is because the rules on circumstantial evidence naturally carries with it an element of doubt. Any parties involve with the trial are allowed to submit any evidence that they found relevant to the case. However, it is the responsibility of the jurist and judge to assess the weigh of the evidence. For qarinah, the level of acceptance plays important role whereas it is utmost significant that the evidence is strong and conclusive. According to the Islamic laws, qarinah is indeed an important

7Zulfakar,R.(1997).The Role of Al-Qarinah(Circumstantial Evidence)in Islamic Law of Evidence:A Study of the Law in Malaysia,With Reference to the Rules And Principles of English Law,p.24. 8Lukman,A.M.,and Wan Abdul Fattah,W.I.(2012).Al-Qarīnah:antara Kekuatan dan Keperluan dalam Mensabitkan Jenayah(Zina),p.10. 9Ibid.

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element of evidence since it could be applied to verify credibility of testimonies and strengthen other forms of evidence such as admission.

In Islamic laws, there are certain conditions that must be adhere to accept witness testimonial in a trial. Evidence from a person who is not qualified to give testimony can be recognised by the court under the rules of circumstantial evidence ( qarinah). As an example, evidence of a son for his father’s interest or a wife for his husband is not admissible as a form of testimony, but it can be admitted by the court only to the stage of qarinah. Another example is the case of testimonial by an under age child that can only be considered as qarinah.

Additionally, it is also a significant form of evidence to judge and jurist as measure to ensure that the punishment imposed is precise and according to the precepts of Islam. In certain circumstances, a crime cannot be proved through the ways which had been agreed by the jurists such as admission and testimony. As an example is a rape case. A women have been raped by a stanger that she was unable to recognise. The suspect could escape from punishment in situation that there are no evidence of confession from the suspect or any witnesses. In this scenario, qarinah is needed as measure to prove the case beyond reasonable doubt. Thus, DNA test may be use as measure to determine the perpetrator 10. Indeed, this method is classify as a form of qarinah but it is acceptable practice in the civil court. Moreover, this method is conclusive in determining the relation between the victim and the accused. Therefore it is justifiable to be use in the Shariah Court.

4.0 The Application of Circumstantial Evidence (Al-Qarinah) in Shariah Court Case in Malaysia For better apprehension regarding the application of qarinah, it is significant to observe the decided cases in Malaysia. The discussion on the practice of qarinah in the Shariah Court is separated into two categories which are the hudud and non-hudud cases.

10Ahmad Syukran,B.(2017)explains that it is important to integrate the fundamentals of forensic science with Al-Qarinah as measure to include circumstantial evidence in the court of law,p.38.

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4.1 Hudud Cases Consumption of Intoxicants (Syurb al-Khamar) The case in reference is the case of Pendakwa Syarie Kelantan v. Yusundy bin Josan & Anor (1994)11. The prosecutor charged two individuals for drinking alcohol under section 25 of the Kelantan Syariah Criminal Code. There are several circumstantial evidences presented in the trial which are the smell of the defendant’s breath, the bottles of liquor were found in the possession of the defendants, glasses used by the defendants containing the liqour from the same bottles, and there is a receipt of purchase found in the possession of the defendants. These circumstantial evidences were considered as strong and conclusive and therefore the learned judge found that both of the defendants are guilty of the offences. It is worth to note that at the time of the offence, no state in Malaysia imposed ‘hudud’ punishments and therefore ta’zir punishment was practiced. The offenders were sentenced to six months imprisonment and six strokes of lashing.

Adultery (Zina) In Malaysia, pregnancy out of wedlock is considered as a form of circumstantial evidence (qarinah). This form of evidence is often used as measure to establish the case of fornication (zina). According to section 23(3) of the Syariah Criminal Offences (Federal Territory) Act 1997:

“the fact that a woman is pregnant out of wedlock as a result of sexual intercourse performed with her consent shall be prima facie evidence of the commission of an offence under subsection (2) by that woman”12.

Further, subsection (4) of the Act states that:

“For the purpose of subsection (3), any woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock”13.

11Pendakwa Syarie Kelantan v.Yusundy bin Josan&Anor(1994)JH 206 12Section 23(3)of the Syariah Criminal Offences(Federal Territory)Act 1997 13Section 4 of the Syariah Criminal Offences(Federal Territory)Act 1997

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These legal provisions indicates that pregnancy out of wedlock is a form of qarinah that can be applied in case of adultery ( zina). As an example is the case of Pendakwa Mahkamah Kadi Perak v. Jaffery & Hasliza (1991)14. In this case, both men and women were accused for the crime of adultery under section 155(2) & (3) of the Perak Administration of Islamic Law Enactment 1965. The case was ruled solely based on the fact that a child was born out of wedlock. Based on the ta’zir punishment, both of the defendants were penalized with fine of RM1,000 or in default, a year of imprisonment. Thus, this shows that circumstantial evidence (qarinah) is admissible in the court of law providing that it is conclusive and strong such as the case of child born with the same DNA of both men and women.

4.2 Non-Hudud Case According to the Shariah law, document is a form of circumstantial evidence. In the case of Nik Salma Zaidah binti Haji Wan Zaid lwn. Nik Hasnah binti Nik Din & Seorang Lagi (2002)15, the defendant presented an approval letter indicates that she was given rights by her deceased step father to build and stay in the house that belongs to the deceased without disturbed for at least eight years. The approval letter was accepted by the Shariah Court despite being classify as a circumstantial evidence (qarinah).

5.0 Conclusion Circumstantial evidence (qarinah) is significant in the present time since it can helps to provide means to prove the guilt of an accused. Additionally, it is also an important element that can helps to establish the validity of admission (Iqrar), and testimony (Shahadah). Indeed, it is important to ensure that the element of justice is maintain in the trial as measure to uphold the precepts of Islam. The court must thoroughly evaluate the level of acceptance for each circumstantial evidence presents in the court of law.

14Pendakwa Mahkamah Kadi Perak v.Jaffery&Hasliza(1991)JH 105 15Nik Salma Zaidah binti Haji Wan Zaid lwn.Nik Hasnah binti Nik Din&Seorang Lagi(2002)JH(II)143

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References Acts Syariah Court Evidence (Federal Territories) Act 1997 (section 130(2)) Syariah Criminal Offences (Federal Territory) Act 1997 (section 23(3), section 4)

Cases Nik Salma Zaidah binti Haji Wan Zaid lwn. Nik Hasnah binti Nik Din & Seorang Lagi (2002) JH (II) 143 Pendakwa Mahkamah Kadi Perak v. Jaffery & Hasliza (1991) JH 105 Pendakwa Syarie Kelantan v. Yusundy bin Josan & Anor (1994) JH 206

Journals Ahmad Syukran, B. (2017). The Integration of Forensic Science Fundamentals and Al-Qarinah Towards Achieving Maqasid Al-Shari'ah. (Falsafah Kedoktoran), Universiti Teknologi Malaysia, Skudai, p.28-44.

Lukman, A.M. and Wan Abdul Fattah, W.I. (2012). Al-Qarīnah: Antara Kekuatan dan Keperluan dalam Mensabitkan Jenayah (Zina). International Journal of Islamic Thought, 2, p.1-17.

Mohd Munzil, M., Ahmad Azam, M.S., Ramalinggam, R., Mazupi, A.R., Anowar, Z. and Noorfajri, I. (2015). Qarinah: Admissibility of Circumstantial Evidence in Hudud and Qisas Cases. Mediterranean Journal of Social Sciences, 6(2), p.141-150.

Zulfakar, R. (1997). The Role of Al-Qarinah (Circumstantial Evidence) in Islamic Law of Evidence: A Study of the Law in Malaysia, With Reference to the Rules And Principles of English Law. (Falsafah Kedoktoran), Glasgow Caledonian University, Glasgow, p.17-32.

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