Exam Practice Question and Answer PDF

Preview

Summary

QUESTION 1 Hashis, a drug addict, was arrested on the suspicion of raping and killing a sales girl. The victim, Musibah, was found strangled in her house’s bedroom. It was discovered that there were bruises on the deceased’s body and traces of semen in her vagina. During interrogation, Hashis confes...

Description

QUESTION 1

Hashis, a drug addict, was arrested on the suspicion of raping and killing a sales girl. The victim, Musibah, was found strangled in her house’s bedroom. It was discovered that there were bruises on the deceased’s body and traces of semen in her vagina. During interrogation, Hashis confessed, in the presence of two Religious Enforcement officers, that he raped the victim but strongly denied that he killed her. The medical report confirmed that the semen in the deceased’s vagina belonged to Hashis. Hashis was subsequently charged for murder and rape. Meanwhile, two of Hashis’s friends, Ganja and Candu, who were also drug addicts, had expressed their willingness to give evidence at Hashis trial as they had been told by Hashis’ himself that he killed Musibah. At the trial, Hashis pleaded not guilty to the charges. He also claimed that his earlier confession was made under duress. Based on the above facts, and assuming that the Court has the jurisdiction to try the offences under Islamic law, discuss:

a) the status of Hashis’s confessional statement;

(6 Marks)

b) the admissibility of Ganja’s and Candu’s evidence;

(4 Marks)

c) the burden and standard of proof imposed on Hashis.

(5 Marks)

ANSWER

a) Confession 1)Issue: Whether confession made by Hashi is admissible? 2) Definition: Iqrar is a type of evidence to establish a right of someone against the maker of admission. Technically, according to Muslim jurists, Shafie – A testimony of the existing right against the maker of the admission himself, may also be recognized as recognition (I’tiraf) Hanafi – An admission of the existence right of another person against the maker of the admission himself. Maliki – Giving information, the content of which binds the informer by merely uttering it Hanbalis – Acknowledgment or confession Art 1572 of the Mejelle

3) Authorities i. An – Nisa’: 135 ii. Hadith – case of Maiz bin Malik iii. Ijma’ iv. Practice of the companions v. Section 18 SCEA

4) General rule – Confession should be made before a court Confession made outside court? – Different jurists’ opinion: -

Imam Abu Hanifah: Invalid and cannot be accepted

-

Imam Malik, Imam Shafie and Imam Ahmad: i) Valid if it is witnessed by 2 witnesses. In zina cases – 4 witnesses ii) If confession is made voluntarily can be considered as sufficient proof for ta’zir offence if it is made before any authorized person or witnessed by 2 witnesses iii) In criminal cases, it must be corroborated with other evidence

5) Elements to constitute valid iqrar – 1. Muqirrun (the maker of iqrar) – voluntary, free from any element of coercion - An Nahl:106 - Hadith - Art 1575 - Fuqaha’: Admission made under duress is void - Conditions to constitute coercion as to invalidate iqrar: i) Person using coercion is capable of enforcing what he is treating to do ii) The victim is under the apprehension that the person coercing will do what he threatens to do if the victim does not obey and the victim is not capable to escape from him. iii) The threat must be immediate. iv) The threat indicates of causing injury to body, part of the body/property/person closely related to the victim (e.g husband, wife, children etc.) - Cases: Mokhtar Pangat, Mst Bakhan v The State - Section 18 SCEA (e)

6) Application Hashi’s confession is made out of court thus according to the majority school, his confession is vaid if it is witnessed by two witnesses. This requirement os fulfilled because Hashi has made confession that he raped Musibah in front of two Religious Officer. According to the majority, if Hashi’s confession is made voluntarily, it can be considered as sufficient proof for the offence of rape which is a ta’zir offence because the confession is made before any authorized person or witnessed by 2 witnesses i.e the Religious Officer. Since this is a criminal case, it must be corroborated with other evidence. Thus, Hashi’s confession can be corroborated with the medical report. Regarding Hashi’s claim that his confession is made under duress, the confession is invalid if the duress fulfilled the requirements given above. However there is no facts showing that the Religious Officer is threatening him to confess to the crime. Thus, his confession is valid an admissible.

However, Hashi make no confession on the murder. Thus,

b) Whether evidence given by Ganja and Candu is admissible?

1) Elements of shahadah -

i. Conditions for admissibility of shahadah 1) Shahid must fulfills certain requirement at the time of occurrence and at the time of presenting 2) Claim/cause of action 3) Request from the prosecutor/plaintiff for the witness give testimony 4) Permission by the Qadhi 5) Witness must give testimony on matters which is clearly under his own knowledge, not to give based on his conclusion 6) No contradiction between the testimonies given 7) Sighah – expression of Asyhadu must be used while giving the testimony

ii. Conditions of shahid 1) At the time of receiving evidence - Sound/mumayyiz - Ability to see/not blind

2) At the time giving testimony - Muslim

-Sound mind

- Reaching the age of puberty

- Trustworthy

- Good memory

- Not bias (free from tohmah)

- Noble character

- Free (ability to see and speak)

2) Shahadah of 2 male witnesses: - Imam Malik, Shafei, Al Auzaei : In all hudud and qisas cases other than zina

- Hanbali: Also applicable in cases of marriage, divorce or civil cases - Al Talaq: 2 - Section 40 (1) Kelantan Syariah Criminal Code – At least two witnesses for offences other than zina - Case – Zainab bt Mahmood lwn Abdul Latif b. Jusoh

3) Examination of witnesses (Tazkiyah al syuhud) i. Definition – A form of investigation conducted by the court on the witnesses for the purpose of ascertaining whetehr he is adil or not

ii. Purposes – 1) To make sure that witness is a trustworthy person 2) To determine the authenticity of the testimony given 3) To ensure that evidences procured are true

iii. Does the testimony bind the judge? – 2 views 1) The judge after hearing the witnesses should give judgement based on the testimony without hesitation 2) Regards the testimony as no more than a means for investigating and establishing the truth

4) Section 119 of SCEA 1994

5) Application Ganja and Candu do not fulfilled the conditions of shahid at the time of giving testimony. Drug addicts are of no noble character, not trustworthy, and are of unsound mind. Thus, the shahadah given by both Ganja and Candu are not admissible.

c) Whether burden and standard of proof are on Hashi? - Burden of proof: - General rule: Burden of proof lies on the party claiming or accusing it. - Hadith Ibn Abbas - Art 76 - Section 77: Burden lies on the accused Shifting of BOP, - Section 75: BOP lies on the person who wishes the court to believe in its existence. - Standard of proof: Dzann al-ghalib (Beyond reasonable doubt) - Apllication: BOP is shifted to Hashi to prove that he did not kill Musibah after the prosecution provided witnesses, the SOP is beyond reasonable doubt....