Malaysia Islamic Evidence & Procedure - AL Iqrar PDF

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AL IQRAR - EVIDENCE BY ADMISSION OR CONFESSIONDEFINITIONLiteral : Admission or recognition Technical: A form of admission for purpose of proving a fact in order to establish a right/interest of another person against maker of the admission himself or establishing an offence/liability against oneself...

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AL IQRAR - EVIDENCE BY ADMISSION OR CONFESSION DEFINITION Literal : Admission or recognition Technical: - A form of admission for purpose of proving a fact in order to establish a right/interest of another person against maker of the admission himself or establishing an offence/liability against oneself. - Its effect is limited to the maker himself and it binds the maker on the facts that he had admitted. Prof. Anwarullah Iqrar = admission or confession, which have been used interchangeably. Admission is used in general cases whereas confession is used in criminal cases only. Admission = A stmt, oral or written, made by a person acknowledging the right of another person claimed against him in a suit. Confession = a stmt made, oral or written, by an accused of an offence, stating that he has committed that offence S 17(1) Syariah Court Evidence (FT) Act 1997 An iqrar = an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right. Art.1572 The Mejelle Admission = a stmt by one person admitting the claim of some other person against him. Person making the admission = an admittor. Person in whose favour the admission is made = the admittee. The subject of the admission = the thing admitted ELEMENTS OF IQRAR Based from the definition, there are several elements of Iqrar: 1. The maker of the iqrar (Muqirrun) 2. The person benefiting from such iqrar (Muqirrun lahu) 3. The subject-matter of the iqrar (Muqirrun bihi) AUTHORITY OF IQRAR: AL-QURAN Surah Al Qiyamah 75:14-15 “Indeed, human will be an eye-witness (providing evidence) against himself; Even though he puts forth his excuses” Surah Ali Imran 3:81 “So saying, He asked: "Have you affirmed this and agreed to take up My burden (that I lay upon you) in this matter?" They answered: "We have affirmed (it)." He said: "Then bear witness (you and your communities), and I will be with you among the witnesses.” Surah Al Nisa 4:135 “O you who believe! Be upholders and standard-bearers of justice, bearing witness to the truth for God's sake, even though it be against your own selves, or parents or kindred.” Hadith: Maiz’s case Ma’iz b. Malik came to Messenger of Allah & said to him: Messenger of Allah, purify me, whereupon he said: Woe be upon you, go back, ask forgiveness of Allah & turn to Him in repentance. He (the narrator) said that he went back not far, then came & said: Allah's Messenger, purify me. whereupon Allah's Messenger said : Woe be upon you, go back and ask forgiveness of Allah and turn to Him in repentance. He (the narrator) said that he went back not far, when he came and said: Allah's Messenger, purify me. Allah's Apostle said as he had said before. When it was the 4th time, Allah's Messenger said : From what am I to purify you? He said: From adultery, Allah's Messenger asked if he had been mad. He was informed that he was not mad. He said: Has he drunk wine? A person stood up & smelt his breath but noticed no smell of wine. Thereupon Allah's Messenger said: Have you committed adultery ? He said: Yes. He made pronouncement about him and he was stoned to death.

Ghamidiah’s case A woman of Ghamid, came to the Prophet & said: Messenger of Allah, purify me, whereupon he said: Woe be upon you; go back & beg forgiveness from Allah & turn to Him in repentance. She said: I find that you intend to send me back as you sent back Ma'iz. b. Malik. He (the Holy, Prophet) said: What has happened to you? She said that she had become pregnant as a result of fornication. He (the Holy Prophet) said: Is it you (who has done that)? She said: Yes. He (the Holy Prophet) said to her: (You will not be punished) until you deliver what is there in your womb. One of the Ansar became responsible for her until she was delivered (of the child). He (that Ansari) came to Allah's Apostle & said the woman of Ghamid has given birth to a child. He (the Holy Prophet) said: In that case we shall not stone her & so leave her infant w none to suckle him. One of the Ansar got up & said : Allah's Apostle, let the responsibility of his suckling be upon me. She was then stoned to death. Unais’s case A bedouin came to Allah's Apostle & said, "O Allah's apostle! I ask you by Allah to judge My case according to Allah's Laws." His opponent, who was more learned than he, said, "Yes, judge btw us according to Allah's Laws, & allow me to speak." Allah's Apostle said, "Speak." He (i .e. the bedouin or the other man) said, "My son was working as a laborer for this (man) & he committed illegal sexual intercourse w his wife. The people told me that it was obligatory that my son should be stoned to death, so in lieu of that I ransomed my son by paying one hundred sheep & a slave girl. Then I asked the religious scholars abt it, & they informed me that my son must be lashed one hundred lashes, and be exiled for one year, & the wife of this (man) must be stoned to death.“ Allah's Apostle said, "By Him in Whose Hands my soul is, I will judge btw you according to Allah's Laws. The slave-girl & the sheep are to be returned to you, your son is to receive a hundred lashes and be exiled for one year. You, Unais, go to the wife of this (man) and if she confesses her guilt, stone her to death." Unais went to that woman next morning & she confessed. Allah's Apostle ordered that she be stoned to death. IJMA’ - All the jurists are unanimous that Iqrar is a proof in Islamic evidence TYPES OF ADMISSION – S 17(1) SCEA 1. Oral admission Need to be made by a person who is capable of giving oral testimony 2. Written admission - A conversant person may make his admission in writing if he is sick/cannot speak because of illness. - Acceptable either using official forms or ordinary paper provided its authenticity can be proven Art. 69, The Mejelle - Correspondence takes the place of an exchange of conversation 3. Admission by signs - Admission by a mute person using known & accepted signs. Can also be made in writing. Art. 70, The Mejelle - The sign of a dumb person which are generally recognised take the place of a stmt by word of mouth. Exception - A sign of a conversant person may not be accepted unless in few circumstances such as admission of paternity (Al-Qiyafah) Jurists had differed in views w in zina cases : 1. Shafi’e & some Malikis – Acceptable & hudud punishment may be imposed. 2. Hanafis : Hudud punishment should not be imposed because such confessions may contains elements of shubhah (doubt) .

CONDITIONS OF A VALID IQRAR 1. Sound mind (Aqil) 2. Age of puberty (Baligh) 3. Free man 4. Voluntary 5. Free from tuhmah and shubhah 6. Not under interdiction 7. Seriously made 8. The muqirrun and subject matter of the admission shall be clearly known 9. Full understanding 1. Sound mind (‘Aqil) - An insane person or a minor is not accountable for their deeds or words under the Shariah Hadith : “The Prophet (pbuh) said: 3 person have been exempted (from every kind of obligation and liability): a) The minor until he becomes pubert; b) The insane until he attains sanity; and c) The sleeping person until he awakes.” Art 1573, The Mejelle - In order to be able to make a valid admission, a person must be of sound mind & have arrived at the age of puberty. Consequently, an admission by a minor, or a lunatic or an imbecile, whether male or female, is invalid. S 18(1)(a) & (c) SCEA - iqrar is inadmissible...who is not ‘aqil baligh...a lunatic or a mentally retarded person (ma‘tuh) 2. Baligh & mumayyiz Generally - A children is not qualified to make admission. Iqrar by a minor who has not attain puberty (baligh) can be rejected. This is based on the above Hadith. - However, a child whose guardians have permitted them to engage in a trade & to transact w the public are allowed to be the muqirrun w the same status as an adult. Nevertheless, their iqrar is restricted only to the matters of mu’amalat only. - There4, a minor admission in matters of dowry, crimes or kaffarah is not accepted even if the guardian consented. S 18(1)(b) & 18(2) SCEA. 3.Free man (not a slave) - Some jurists do not make this an absolute condition. - An iqrar of a slave is acceptable in all cases including hudud and qisas if he is permitted to engage in trade by his master. 4. Voluntarily made - A person must confess w free consent & w/o any elements of coercion & in full consciousness. - There4, an iqrar made under threat, amnesia, inducement or promise is inadmissible. Hadith - It was narrated from Ibn 'Abbas that the Prophet said : "Allah has forgiven my people for mistakes and forgetfulness, and what they are forced to do.“ Art. 1575, The Mejelle - A person making an admission must do so of his own free will. Consequently, an admission made as a result of force or constraint is invalid. S 18(1)(e) SCEA 5. Free from tuhmah (biasness) & shubhah (doubts) - An iqrar must free from any taint of bias or doubt. Tuhmah may occurs due to good or bad r’ship, enmity, at the stage of death sickness or admission outside court. - An Iqrar by a non- Muslim is acceptable as long as it is free from any of the elements. 6. The Iqrar must be seriously made - Iqrar must use a serious language & demeanour but w full respect to solemnity of the proceeding. - An iqrar made in playful manner is inadmissible

7. Not under interdiction (mahjur ‘alaih) - An iqrar by a person who is refrained by law from managing his property e.g. : bankrupt is null and void. Art. 1576, The Mejelle - A person making an admission should not be under interdiction S 18(1)(f) SCEA 3 types of person who under interdiction: 1. insane person 2. safiih-who destroy and waist his property 3. bankrupt According to majority: the admission will not be accepted in civil cases but admissible in criminal or hudud cases. 8. The Muqirrun & the subject matter of the admission shall be clearly known - The identity of the muqirrun must be well established & certain. Eg. In case of group of men admitted to the offence they committed. - However, the admission made thru a representative of the muqirrun made b4 a judge is acceptable in Islam. - An iqrar must be explicit & clear as to the commission of crime & violation of rights (subject matter). Any ambiguity would renders it inadmissible. Eg. Ma’iz case - The muqirrun must be ascertain that he knew the nature & consequences of his admission. 9. Full understanding - The muqirrun should have full understanding of what he is saying & as to the nature & effect of iqrar. Refer Maiz`s case CONFESSION IN HUDUD CASES 1. ZINA There are 2 views w regard to the number of confession needed: a) Hanafi/Hambali : 1) Hanafis - Iqrar in zina cases should be made 4 times in 4 separate occasions. But Hambalis says sufficient in 1 setting. Based on the precedent laid down by the Prophet in Maiz`s case b4 accepting the zina confession i.e. turns his face 2) Hanafi - Iqrar must be made in front of a judge in Ct. It’s not justified outside Ct by means of testimony. 3) Hanafi - Iqrar must be made orally. It cannot be in gesture or writing or by dumb person. b) Maliki/Shafie: - One Iqrar is sufficient for conviction in zina cases. Reason - admission is to give the true evidence of a fact & such truth will not be strengthen or weakened even if there are more than 1 Iqrar. Based on Unais case. - Shafie states that admission by dumb person or by gesture is admissible 2. Theft & Highway Robbery a) Hanafi: Iqrar made once is sufficient Abu Hanifah and Muhammad: If there is no claim made by owner that his property is stolen, the Iqrar will not be admissible. b) Abu Yusuf: - No. of Iqrar depends on the no. of witnesses if it is established thru testimony (syahadah). - Since no. of witnesses to give syahadah in theft cases is 2 male witnesses, so no. of iqrar is twice. Hadith - the Prophet will not passed verdict in theft cases until it is repeated twice. - A claim of the owner that his property is stolen is not a requirement.

3. CONSUMPTION OF LIQUOR Majority: Single Iqrar is sufficient Abu Yusuf - 2 times- depends on the number of witnesses required according to each cases. Hanifah and Abu Yusuf - the Iqrar must be made immediately in the presence of the smell. If he admit but the smell had gone, no hudud punishment could be imposed. Majority - Hudud punishment still applicable even smell had gone. RETRACTION OF ADMISSION The jurists had discussed the matter in 2 circumstances: 1. Retraction from confession in hudud cases: - Generally, admissible to retract a confession at any time b4 or after pronouncement of judgment or even b4 execution of the punishment is finished as it will nullifies the hudud punishment. - However, if there are other means or supporting evidence such as syahadah etc to prove the case, then even the iqrar is retracted, he still can be punished w hudud. Hadith: “When the Prophet ordered Maiz to be stoned to death, he was stoned to death outside the city. When they began to throw stones at him, Maiz tried to escape, and said: O people, take me back to the Prophet (peace be upon him). The people of my clan deluded me, assuring that the Prophet would not condemn me to death. But they did not let him escape. Afterwards when this incident was reported to the Prophet, he said: Why didn’t you let him go? Had you brought him to me, he might have repented and Allah might have accepted his repentance. 2. Retraction in non-hudud and civil cases - Generally, not allowed to retract an admission or confession in the following cases: 1. Retraction in matters related to the rights of individuals such as qisas &diyat, where the victim or his relatives may pardon the offender & the pardon is valid 2. Retraction in an offence liable for ta’azir 3. Retraction in all civil matters. Art. 1588, The Mejelle - No person may validly retract an admission made w regard to private rights. Thus, if a person admits owing a certain sum of money to another & later retracts his admission, the retraction is invalid & he is bound by his admission. PRIOR COMPLAINT - Some jurists view that it is necessary b4 accepting an admission in cases involving human rights such as qisas & theft that there must be a prior complaint against the accused in a Ct by victim/P. - If no complaint is made, it would be presumed that the victim might have pardoned the accused/D & thus no proof is required. - There4, if a person confesses to have committed theft, the punishment will not be implemented on him until the victim files a complaint against him. - However, the jurists had opined that no prior complaint is necessary to accept confession in an offences related to pure rights of Allah such as zina. Reason - it is a duty of every muslim to safeguard the rights of Allah & whenever he violated any rights of Allah, he should confess the offence b4 the Ct regardless whether there is any complaint filed against him or not. Hadith: Maiz’s case NO PRIOR COMPLAINT Abu Yusuf, Malik, Abu Thor & Ibn Munzir : - No prior complaint is needed if a person confesses to have committed hudud offence, hudud shall be implemented on him though there has been no complaint filed against him prior to his confession in the Ct.

Iqrar Made In A State Of Marad Al-maut (Dying Sickness) GR - Health condition is not a requirement for a valid iqrar Art. 1595, The Mejelle - A mortal sickness is a sickness where in the majority of cases death is imminent, and, in the case of a male, where such person is unable to deal with his affairs outside his home, and in the case of a female, where she is unable to deal with her domestic duties, death having occurred before the expiration of one year by reason of such illness, whether the sick person has been confined to bed or not. S 19, SCEA - An iqrar made by a person in a state of dying sickness in relation to his liability or obligation to another person shall be admissible. - If the sick person has admitted a debt to 1 of his heirs then such iqrar is invalid & unenforceable unless it is permitted & acknowledged by his other heirs. However, if the sick person has admitted that he owed a debt to a person not being an heir then this kind of iqrar is valid & enforceable. Art. 1598, The Mejelle - If a person after having made an admission during a mortal sickness that certain specific property, or a debt, belongs to 1 of his heirs, and then dies, the validity of such admission depends upon the ratification of the other heirs. If they agree, the admission is held to be good; if not, it is invalid. EFFECT OF ADMISSION - A person is held liable for his own confession. - A confession only binds the maker as confession needs to be made voluntarily by a full age & sane person. Authority: i. “One is held responsible for one’s confession” ii. “Confession is intransitive evidence” - Iqrar can only be accepted if it is made b4 a judge in a competent Ct or if it is made outside Ct, in front of 2 male witnesses who are sound, baligh & ‘adil S17(2) SCEA S 17 (3) SCEA - An iqrar which relates to any fact in issue or relevant fact is qarinah. CONFESSION OF CO-ACCUSED - A confession is a proof against the confessor only & it is not a proof against his co-accused. - When there are more than one accused persons in a crime. The confession of one of the accused persons which incriminates himself & the other accused is only admissible against the confessor and not the other accused who does not confess to the alleged crime. - However, the co-accused may be found guilty not as a result of the confession of the co-accused but because of other compelling evidences which nail the accused. Hadith: a) Maiz’s case b) It was narrated by Sahl ibn Sa'd: A man came to the Prophet & confessed b4 him that he had committed fornication w a woman whom he named. The Prophet sent for the woman & asked her abt it. But she denied that she had committed fornication. So he inflicted the prescribed punishment of flogging on him, and let her go. 1. According to Imam Malik, Imam Shafi’e & Imam Ahmad: - If a man confessed to have committed adultery w a woman who is absent, hudud will be implemented on him. - If a man confessed to have committed zina w a woman whom he does not know, hudud will be implemented on him. - If a man confessed to have committed zina w a woman & she denies the allegation, hudud will be implemented on him & not to her. 2. According to Hanafi: - One party confesses & the other denies the charge, hudud will not be implemented on both of them because the denial of the other creates doubt in the confession of the 1st party....