Malaysia Islamic Evidence & Procedure - AL Shahadah PDF

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AL SHAHADAH (eye-witness testimony) recognised by jurists as the best evidence after confession (iqrar) Literal : = To be present and witnessing an event = News or info which is authentic (undoubted). = Info of what one has witnessed or seen or beheld w his eyes, declaration of what one knows, decis...

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AL SHAHADAH - (eye-witness testimony) recognised by jurists as the best evidence after confession (iqrar) - Literal : = To be present and witnessing an event = News or info which is authentic (undoubted). = Info of what one has witnessed or seen or beheld w his eyes, declaration of what one knows, decisive info. CLASSICAL DEFINITION Ibn Humam (Hanafi): - shahadah is an info that has the quality of truth & is used to show the existence of a right or an interest for the purpose of judicial hearing w the word ash hadu Shaikh Shihabuddin (Syafie): - shahadah is giving info relating to the right or interest of another person given w the expression of “ash hadu” (I bare witness). Ibn Arafah (Maliki) - a stmt that makes it obligatory on a judge to give judgement based on it, if the person who makes the stmt is adil & or made by a required no. of witnesses or when supported by oath/claimant. Ahmad Fathi Bahansi - shahadah is an info regarding right or interest of one person against another be it the right of Allah or the Right of Man. Such info must be based on certainty (Yakin) & not on deduction of inference. MODERN TECHNICAL MEANING Prof Anwarullah: - Stmt of a witness of any matter, oral or written, in or before Ct to prove or disprove any fact disputed therein by using the expression “ash hadu” or any other synonymous expression. - It signifies the evidence of a witness given viva voice in court. Mahmud Saedon, shahadah is: 1. A form of knowledge based on the truth & certainty and it does not stand on conjecture, 2. It uses the specific words to testify, i.e. “Ash hadu” (I bear witness that...), 3. It is given during a judicial proceeding or in Ct, 4. It is given to secure the right of another person against another person & not for the benefit of the witness himself, 5. It is used to prove a right or interest w regards to rights of Allah or rights of others.

BAYYINAH VS SHAHADAH JUMHUR`S VIEW - The classical jurists from the 4 SOT were of the views that Bayyinah is also shahadah. = means that the word Bayyinah and Shahadah is used interchangeably. = There4, giving evidence is Bayyinah & presence of witness is Shahadah. 1.Surah An Nur 24:4 “Those who accuse chaste, honorable women (of illicit sexual relations) but do not produce four male witnesses (who will witness that they personally saw the act being committed): flog them with eighty stripes...” = evidence required to prove adultery is 4 male witnesses & those who cannot produce so, must be flog w 80 stripes for giving false testimony. 2. Hadith of the Prophet p.b.u.h. - Anas bin Malik said: “The first case of lian that occurred in Islam was when Hilal bin Umayyah accused his wife in the presence of the Prophet of adultery with Sharik bin Sahma. The Prophet P.B.U.H said: “Produce bayyinah (evidence) or you must receive punishment on your back (qazaf). He said: O Prophet! When one of us sees a man having intercourse with his wife, should he go and seek evidence? But the Prophet merely reiterating his answer. Hilal then said: On Him who sent you with the truth, I am speaking truly, may Allah send down something that will free my back from punishment. Later Surah An-Nur 24: 6-9 was revealed concerning lian - The word Bayyinah used in the verses = 4 witnesses who can give shahadah CONTEMPORARY JURISTS - This view includes al-Hurri, Ibn Qayyim and Ibn Farhun: - Bayyinah = general term which covers all types of means of proofs. - Shahadah = a type of Bayyinah. - They say that a close study on the term Bayyinah as used in AQ & Sunnah shows that the term Bayyinah is not used exclusively for Shahadah only but it is also used to connote all other evidences such as qarinah, iqrar etc. 1) AUTHORITIES FROM THE QURAN - The word Bayyinah used as hujjah or argument for clear explanation 1 . Surah Al Ankabut 29:35 “Assuredly, We have left behind a clear sign for a people who will reason and understand...” 2 . Surah Al Hadid 57:25 “Assuredly We have sent Our Messengers w manifest truths (and clear proofs of their being Messengers)...” 3 . Surah Al An`am 6:57 “Say: "I take my stand on clear evidence from my Lord...” - Bayyinah does not only denote testimony but also means clear sign on exposure of things. 2) AUTHORITIES FROM THE HADITH Hadith narrated by Ibn 'Abbas: “...the (burden of)proof is upon the claimant and the taking of an oath is upon the one who denies (the allegation)." - Hadith of Prophet also imply the general meaning of the term Bayyinah. - There4 they say that Bayyinah is general & Shahadah is specific.

3) IJTIHAD - This is considered as the preferred view because it is flexible. If not then the operation of the Islamic law will be limited. Once we open the meaning of Bayyinah to includes all types of testimony then scope becomes wide & practical. Ibn Qayyim = shahadah is not the only way to prove sth as there are many other methods of proof that can establish the truth. In fact, certain aspects of evidence are sometimes stronger than shahadah. Exp: The requirements of a valid witness is that he must be a Muslim. If we need an expert & we could not find it within Muslim, he can give evidence under bayyinah instead of shahadah. AUTHORITY ON VALIDITY OF SHAHADAH AS MEANS OF PROOF Al Nisa 4:135 Al Baqarah 2:282 Al Talaq 65:2 Al Mai’dah 5:8 Al Nisa’ 4:15 Al Nur 24:4 HADITH 1. Prophet has been asked about being a witness and he replied : “Do you see the sun? The man said : Yes. The Prophet SAW then said : If you see it like that (as if he is seeing it as clear as the sun) then be a witness, if not you better leave it as it is.” 2. Zayd ibn Khalid al-Juhayni narrates that the Prophet PBUH has said: “Have I told you about best witness? It is he who gives his testimony b4 being asked for it.” 3. Ibn Abbas narrates that the Prophet PBUH said : “Burden of proof lies on P/complainant & the oath is to be sworn by the person who denies.” THE PILLARS OF SHAHADAH Al-Shahid: The party who gave the testimony Al-Mashhud-lahu: The party for whose benefit the testimony was given Al-Mashhud ‘Alaihi: The party against whom the testimony was given Al-Sighah: The specific words indicating a testimony Al-Mashhud bihi: The subject-matter of the testimony.

1) CONDITION FOR AL-SHAHID (WITNESS) - The jurists had laid down several conditions to be fulfilled by witness & can be categorised into 2 circumstances: a) Condition when the person witnessing the fact b) Condition when the person giving evidence in court A) CONDITIONS AT THE TIME OF WITNESSING THE FACT 1. Sound mind 2. Attain age of majority. However an evidence of a mumayyiz (age of discernment) can still be accepted in certain situation Prophet said: Three person have been exempted (from every kind of obligation and liability): a) The minor until he becomes puberty; b) The insane until he attains sanity; and c) The sleeping person until he awakes. 3. ‘Adil (credible) - Surah Al-Talaq 65:2 4. Must not be blind & he must be able to see the fact b4 his own eyes (majority view). Shafie’s view – not a condition because a blind person can receive shahadah thru hearing. B) CONDITION WHEN THE PERSON GIVING EVIDENCE IN COURT 1. Islam 2. Sound mind 3. Baligh 4. Adil 5. Good memory 6. Beyond suspicion 7. Capable of speech 8. Capable of seeing 1) ISLAM Generally - jurists agreed that being a Muslim is a mandatory condition in giving evidence based on these authorities: 1. Surah Al Maidah 5:106 2. Surah Al Baqarah 2:282 - Based on the verses, a non-Muslim’s testimony against a Muslim is rejected Imam Ahmad & Abu Hanafiah - However, evidence of non muslim as against themselves are generally admissible - However, scholars had divided in their opinion as to the evidence of a non-Muslim in some cases. Testimony Of A Non-Muslim W Regards To A Will Made By A Muslim During A Journey Imam Abu Hanifah & Ahmad: admissible where there are no muslim witnesses during a journey. - Al Maidah 5:106 Imam Shafi’e & Malik: inadmissible based on the qualities of a witness. - A non-muslim is not amg those who are just & not amg the accepted community, since they are a people who denies the authority of Allah, there4 as against Muslims, they are not to believed. = Al Baqarah 2:282 Evidence Of A Non-Muslim Against A Muslim In Times Of Emergency - If there’s a valid reason to be found for admitting such a testimony = admissible. Ibn ‘Abbas in interpreting Surah Al Maidah 5: 106 : it includes the people of the Book in times of emergency, eg during a journey – supported by Imam Abu Hanifah. Hadith : Prophet p.b.u.h ordered a jew man & woman who had been accused for committing zina to bring 4 jew witnesses on their offence & he punished accused on testimony of jew witnesses. Imam Malik: allows a non-muslim doctor to testify where there are no muslim doctors available.

RECONCILIATION As mentioned by Prof Anwarullah in his book: - The situation in the present day has changed. Many muslims & non-muslim reside in non-islamic states & all the countries of the world are connected & tied w one another thru mutual pacts & different international & territorial organisations under which every state is bound to give rights to all its residents which are available to the residents of the other states. - In depriving non-muslims of giving testimony for & against one another is not fit in the present day circumstances. It will be in the interest of the present day situation in Islamic countries to allow non-muslims to give evidence for & against one another in matters other than hudud. So far Hudud crimes are concerned, their evidence for & against one another will be accepted but the accused shall not be punished w hadd & may be punished w ta’azir. - Furthermore, evidence of non-muslim may also be accepted for & against a muslim in matters other than hudud specially when no muslim witness is available in that case because there is no express verse in Quran or hadith which prohibits the acceptability of the evidence of a non muslim. - To note this point, on the contrary in Surah Al Maidah 5: 106, the evidence of 2 non-muslims for a muslim is acceptable in connection w his will at the point of his death during a journey when muslims are not available there. - The jurists however concur that a non-muslim can produce circumstantial & documentary evidence for & against a muslim even in a case of hadd. Moreover, a non-muslim can give expert opinion in any civil or criminal case & against a muslim or non- muslim. 2) BALIGH (AGE OF MAJORITY) Generally - testimony of a minor is inadmissible – Surah Al- Baqarah 2:282 - Some jurists view that child cannot give shahadah but can give bayyinah. - However minor evidence can be admissible if it is satisfied certain exception: a) Maliki - shahadah of a child can be accepted in Qisas cases - murder & injuries - subject to limitations: 1. The child must be mumayyiz 2. He must be present on the spot 3. No other adults witnesses b) Hambali - a shahadah of a child of age of 10 yrs (mumayyiz) can be accepted in cases of accident, assault & battery provided that the child gives the shahadah b4 leaving the scene of incident – such circumstances shows that the child is speaking truth & can recall the incident. 3) SOUND MIND Generally - a witness must be in possession of his mental faculties both when he observes the incident or gets knowledge of any fact & when he testifies. - Unsound person cannot give Shahadah as he doesn’t know/understand nature & effect of giving evidence. As such, an intoxicated person & insane person are excluded from giving shahadah. Hadith - “The pen has been raised from the juvenile until he reaches puberty, the sleeping person until he awakes and the lunatic until he recovers his mental capacity. - However, a person who is sometime unsound & sometime sound mind can give shahadah when he is sound - S 83(1) Syariah Evidence FT Act

4) ‘ADIL (CREDIBLE) Definition: one who acts equitably, justly, rightly. He must be a reliable person in his society and is not notorious or wicked person. Imam Abu Hanifah - justness should be reasonable as benefits an ordinary Muslim & there are no blameworthy attributes on the person of the witness. Imam Shafiee - some1 who stays away from major sins, have no tendency to commit minor sins, possessing true faith and calm disposition even in a state of anger and able to protect his honour. Hambali - measured by one’s adherence to the dictates of religion & truth of his speech & conduct. Maliki - protecting one’s religion by staying away from major sins & being vigilant w regards to minor sins, fulfilling trusts & good social interaction. Imam Abu Hanifah - every muslim is ‘adil unless his credibility is challenged by opposite party. Surah al Talaq 65:2 Surah Al Baqarah 2:282 Hadith : “All muslims are ‘adils (credibles) for one another except the one who has been punished with hadd qazaf.” - An instruction of Saidina ‘Umar to Abu Musa ‘Al Ash’ary in a letter wherein he writes : “All muslims are acceptable as witnesses against each other except those who have been punished with hadd of qazaf, those who have tendered false evidence & those who are suspected (of partially) with respect to the accuser’s status or relationship.” - There4, an evidence by a fasiq (someone who frequently disobey religious teachings is inadmissible unless he repents – Surah Al Hujurat 49: 6 Imam Muhammad, Imam Abu Yusuf, Imam Malik, Imam Shafi’e and Imam Ahmad - the judge has to satisfy himself of credibility of a witness in every case whether or not he is objected by the opposite party because the acceptability of the evidence (shahadah) of a witness is based on his credibility. Majjalat Al Ahkam Al ‘adliyyah (Art. 1750) “the ‘adil person is one whose good impulse prevail over bad.” = a person of good morals with essentially religious sense the natural inclination, innate or acquired, or whether it is sufficient for it to be achieved by an effort of will, is however a theoretically disputed point. - However, conditions for ‘adil of a witness should be viewed in a relative sense i.e. in the light of his environment/background. - No. of Maliki’s jurists accept the testimony of non-credible witnesses in cases of necessity & the testimony of persons whose credibility is unknown in minor cases. Al Tarablasi “If majority of residents in a locality are evil-doers, the evidence of some of them will be accepted for & against the others so that their interests may not suffer & their rights may not be destroyed. If, in the opinion of a judge, an evil-doer gave true evidence, he should accept his evidence & his evil-doing in other matters will not harm it because a person may be evil doer in one matter while he may not be evil-doer in another matter.” - Credibility of non-Muslim witness may be determined according to his religion, belief or conduct. - In conclusion, the jurists opine that a non-’adil witness is competent to give evidence in any case. 5) GOOD MEMORY (DABT) - Strong memory as to enable him to relate accurately his testimony abt the particular event that he had witnessed. - Habitually absent-minded, of weak remembrance/mistaken = inadmissible - It is to guarantee the quality of the witness so that the decision by the Ct would be just.

6) BEYOND SUSPICION (TUHMAH) - Suspicion due to good relations, the existence of individual interests or suspicion due to bad relations w someone who is related to a particular case or judicial proceeding. - It will give rise to feelings of love, ill, will, hate, fear or undue influence on the part of a witness while he is giving evidence Hadith : “There shall be no testimony (shahadah) for people who have tuhmah.” Imam Abu Hanifah : as long as the justness (‘adil) of the witness is there, then the question of tuhmah will not be taken into consideration. Majority scholars - agreed that enmity btw a witness & a party in the same case disqualifies the witness and renders his testimony inadmissible. - However, enmity by reason of matter involving rights of Allah does not qualify the witness if he possess quality of credibility, so testimony of a Muslim for & against a non-muslim is admissible. - The scholars are not unanimous in their view on a witness who has good relations w someone who has an interest in a dispute (enmity) GR (in majority) - the evidence is inadmissible Hadith - “The testimony of a treacherous man & a treacherous woman is not admissible nor for a man having enmity w his brother.” Majallat Al Ahkam ‘Adliyah, Art 1702 - “It is condition that there must not be enmity as regards temporal things btw the witness & the person against whom testimony is given.” Testimony Of A Husband For His Wife & Vice Versa Imam Malik & Abu Hanifah: rejected Imam Shafie: allowed Ibn Qayyim : nth in the verses in Quran that rejects the testimony of near relatives for each other...it is based on the principle of Shariah that all Muslims are credible for one another. Actually such testimonies became doubtful when the people started giving up the requirements of justice & they started giving preference to the relations than to the justice. But this does not mean that it is an established rule of judiciary in shariah. - However, if the testimony of a relative is based on relation and not on justice, his testimony will not be admissible. This is left to the judge to look into the testimony of the relatives & differentiate btw the one based on justice & the one based on relation and accept the 1st & reject the 2nd. 7) CAPABLE OF SPEECH - Testimony of a dumb person : Imam Malik & Al Shafie : admissible as long as his gestures are understandable. Hanbali : inadmissible because his gesture did not reach the status of yaqin (certainty), but can be accepted in an emergency case eg. No other witnesses present. 8) CAPABLE OF SEEING GR - inadmissible in hudud & qisas cases. Imam Malik, Imam Shafie & Imam Ahmad - Evidence of blind is accepted in civil cases. - Since it is admissible for dumb & deaf to give shahadah as long as he can write or his signs are intelligible, it is admissible as well for the blind person concerning hearing. - Sight is not a condition for a witness & non-existence of the sight does not affect the character of a person & it is not expressly mentioned in Quran and Sunnah. Hanafi School (Imam Sarakshi): inadmissible in hudud case - principle of hudud are removed by doubt & hearing of voice by blind person substitutes the observation of a non-blind person - what is substitution cannot be at par w the original & as such hadd will not be implemented by such testimony unlike the matters of properties.

APPLICATION OF SHAHADAH UNDER SYARIAH COURT EVIDENCE (FT) ACT 1997 S 3 - Definition - “syahadah” = any evidence adduced in Ct by uttering the expression “asyhadu” to establish a right or interest - “witness” does not include a P, D & an accused person. S 83: Who may testify as witnesses - all Muslims shall be competent to give syahadah or bayyinah as witnesses provided that they are ‘aqil, baligh, ‘adil, have a good memory and are not prejudiced. - A non-Muslim shall be competent to give bayyinah for a Muslim if his testimony is admissible according to Islamic Law. 1. A person who is not ‘adil is competent to give bayyinah but not competent to give syahadah. 2. A person who is not baligh or a person who is of unsound mind is competent to give bayyinah but not competent to give syahadah. 3. A person who has a weak memory or is forgetful or suffers from lapses of memory is competent to give bayyinah but not competent to give syahadah. 4. A person whose credibility is suspected because of his good r’ship w & who has an interest in the adverse party is competent to give bayyinah but not competent to give syahadah. 5. A person whose credibility is suspected because of his bad r’ship w the adverse party is competent to give bayyinah but not competent to give syahadah. EXAMINATION OF WITNESSES (TAZKIYYAH AL SHUHUD) – S 119-129 SCEA • Definition: Mode of enquiry adopted by a Ct to satisfy itself abt a witness whether he is ‘adil (credible) or not. • According to the jurists, the credibility of an unknown witness should be investigated b4 his testimony could be accepted by the Ct Surah Al Talaq 65: 2 - “...and call to witness 2 credible persons among you.” Surah Al Hujurat 49: 6 - “if a wicked person comes to you with any news, ascertain the truth.” - The test of credibility is based on strong ...