4. Islamic law and Sharia are often interchangeably used.
Sharia is a broader concept including ethical principles which are not
provided with definite legal sanction.
Islamic law of evidence consists of both witness testimony and
general proof with more emphasis to the former.
There is disagreement amongst the jurists as to whether general proof
can be applicable to criminal matters of Hudud.
General proof is a means by which truth is manifested.
Evidence is necessarily limited to confession of the accused or witness
testimony for a Hadd offence.
The Shahada or testimony is one of the most important in situations
within the system of evidence and the judicial organisation of Islamic
law. In Islamic law, testimony of witnesses is the best proof.
5. Written testimony has always been looked upon with disfavour by
judicial practice and doctrine.
When written material was widely used in legal matters and regular
clerks were appointed to tribunals, the contents o f public and private
documents were proved not so much by the text itself as by the
witnesses who attested the documents.
The legal documents, private or notarised, had to be witnessed by at
least two persons. Judgements had to be witnessed as well
The reaso n perhaps is the jurists managed to avoid the Qur’anic
injunction towards written documents [e.g. Sura 2:282] by interpreting
it as a simple recommendation.
To be competent in Islamic law, a witness must possess maturity,
reason, memory, speech, visual and audible perception, good
character, authentic knowledge of the issue, and faith in Islam.
Within the juristic debate there are exceptions to all the above
conditions except reason, memory and good character.
Islamic law is to a certain extent based on the theory of corroboration.
6. Within Hudud it seems that the greater the gravity of the crime
within the Islamic concept o f a society, the greater is the weight given
to the corroborating testimony of a specified number of witnesses. The
crime of Zina (similar to adultery), as laid down in Sura 4:19-20 and
24:4, requires four witnesses o f just character in order to be proven.
In all other cases, a minimum of two men or one man and two
women are considered satisfactory by the jurists according to Sura
2:282.
This does not mean that a decision would weigh in favour of a person
who brings more witnesses. The justness of the witnesses is of utmost
importance.
The testimony of each witness of just character must be supported by
another witness o f just character and the justness of character of each
other witness must be confirmed by another person of just character
called the Muzakki.
The qualifications o f witnesses are considered of utmost importance
to insure impartiality and justice in the judicial process.
7. The Essential Elements of Proof are:
1. admission by the accused as the primary evidence,
2. the testimony of two just witnesses, and
3. the oath of either party and the testimony of one witness.
In Islam, the Standard of Substantive Justice, consisting of a set of
religious and moral values highly esteemed in the public eye, is far from
capable of being realised by the judicial process, despite the stress laid
on the qualifications for the office o f judge and the meticulousness of
the law of evidence.
In effect, the harshness of Islamic Criminal law and penalties is
mitigated by the rules of evidence. Morally, it is regarded that if a
witness lies in front of the Qadi, it does not exempt him from the
greater punishment awaiting for him from the Almighty.
The legal and moral values are in coherence with one another.
8. Islamic Law of Witness Testimony
The Shahada or testimony of a Shahid or a witness is a declaration on
a legal claim in favour of one party against another party, based on an
accurate knowledge of the state of affairs, and is made before a judge
in a prescribed form. The taking and giving of testimony is Fardala al
Kifava or collective obligation. It becomes Fard al Ain or individual
obligation if only one person is present on the scene.
Crimes are divided into two categories, Haqq Allah or crimes
involving public rights and Haqq Adami or crimes involving private
rights. Hadd punishments comeunder the category of public rights.
Public right is given preference to private rights.
In cases involving corporal punishment of Hadd, Allah it is
recommended that witnesses remain silent.
Khadduri propounds that the experience of Islam in procedural justice
demonstrates that man in earlier societies was more habitually
inclined to trust judge who enjoys a good reputation than judicial
system. Although structure of Court was primordial, qualities of judge
9. The judge was the central figure in the judicial process. The judge
is Oadi 'adl or just judge and likewise the witness is Shahid 'adl or just
witness, because ’adl (justice) is second only to faith as the highest
quality a man should possess, were he to be chosen a judge or a
witness.
Like the judge, the witness or Shahid. whose testimony is considered
the objective evidence, Al-bayyina. on the strength of which the judge
makes decision, must be a person o f good character, i.e. Shahid 'a d l.
The minimum requirement is that he must display justness at the time
when his testimony is provided. It seems that the early jurists were
more concerned with the truthfulness o f the judge and the witnesses,
assuming that moral and truthful persons would speak the truth.
Later jurists laid down further requirements and specified conditions
for witness testimony. Ibn Rushd (520 H./1126 A.D.-595 H./1198
A.D.), a Maliki judge, stated that the witness must be a free
and adult believer, and above all he must be just according to the
Qur’anic Sura 65:2.
10. Some jurists agreed that a sinful person, i.e. a Fasiq should not qualify
even if he repented, although most jurists were inclined to accept
testimony if the witness had repented.
“In the words of the Second Khalifa Umar ibn al Khattab, all Muslims
are credible witnesses except those who have suffered stripes for
offences with fixed penalties, i.e. Hudud offences, such as having
been proven to have given false testimony, or being suspected of
partiality on ground of relationship, whether of blood or of patronage.
The institution of witness testimony took a form al form of Shahada
in 174 H./790 A.D. This institution is different from the above
mentioned witness testimony of lay person and Muzakki.
This institution consisted of a procedure in which the judge
ascertained the reliability of an individual and recognised him as a
truthful witness whose testimony could not, in principle, be doubted.
The parties could at the same time call their own witnesses but the
testimony of these witnesses was at risk of being discarded. The
system of Shahada originally was developed to protect the validity of
th e lega l acts o f transactions, judgements, etc.
11. Later institution became a necessary part of judicial system.
Its primary function was to provide witnesses to the
hearings and the judgement in the suit.
This institution is firmly established in the Hanafi, Maliki,
and the Shafei school of thought.
There was no precise regulation as to number of witnesses a
judge could hear. It seemed to depend on the consideration
of practical expediency and opinion of the judge.
It appears that a minimum of two witnesses was required,
but in practice four witnesses used to remain present.
Most jurists adhere that women are not competent witnesses
for grave offences and even if they are, a man’s testimony is
equal to two women. This is reinterpreted that women are
capable of giving testimony in all cases except grave
offences and fixed loan transactions.
12. Kinds of Evidence
According to Hanafi law there are three kinds of witness testimony.
Tawatur meaning universal testimony is the best form of evidence. In
this kind of evidence a large body of men accurately depose to the
same facts. It could also mean evidence o f facts having different
opinion public notoriety.
Ahad is the testimony of a single individual and
Iqrar is an admission including confession.
Muslim jurists have unanimously preferred Tawatur to any other kind
o f evidence, then is Ahad. It must have developed from the science of
collecting Prophetic Hadith (Traditions). These kinds of witness
testimony would be juristic development based on the collection of
Hadith, which did not systematically start before death of the Prophet.
Iqrar was known in Prophet's time, as clear from Hadith collection.
13. Evidence could be Direct or Indirect.
Though direct evidence is understood to be the main form of evidence
in Islamic law by all the schools of thought, indirect evidence is also
recognised by the jurists. The direct testimony requires the presence of
an eye-witness. Indirect evidence could be hearsay or circumstantial
evidence.
Direct Evidence
The direct testimony requires presence of an eye-witness. An example
is application of Hadd punishment by Sultan Firoz Shah Tughluq who
condemned a person to Hadd punishment of execution after charge
was proved by witness testimony and confession of person when he
was declared apostate by Ulema for his heretic claim o f Prophethood.
14. Hearsay Evidence:
Hearsay evidence was admitted somewhat freely in cases before the
Faujdar (a Court having military and police duties and associated with
revenue administration ) where the accused persons‘ previous records
and their likelihood to disturb the peace was in question. The Court
could take judicial notice of facts too well known to require proof.
A fact that had public notoriety regarding the state of a certain thing,
its existence, its use, etc. was admissible, e.g. the existence of an
endowed property (Wakaf) and its use, whether a building is a public
mosque and so forth.
15. Conclusion: based on hearsay evidence judge is supposed to consider
that:
Facts or occurrences which militate against or appear impossible to
rational intelligence (Aql-Qatay‘i are not worthy o f reliance,
Facts and occurrences which are contrary to ordinary human
experiences or natural course of events are not worthy of credence,
Facts that stand in direct conflict with clear reasoning or
rationalisation (Qias-i-Jali are not accepted.
Examples of hearsay evidence would be birth, death, marriage,
legitimacy, paternity, cohabitation , appointment and jurisdiction of a
Qadi. etc. provided that the information is received from men of
reliable character. Even in those matters, a mere sta tement by a
witness that he heard so and so would not be accepted, but he must
declare the fact itself, for instance, that on a particular date so and so
was Qadi of such and such a place and he knew it, although his
knowledge might be based on hearsay.
16. Circumstantial Evidence
Circumstantial evidence or Qarinah is also admissible, provided it was
beyond reasonable doubt or positive, Qatiatun. For instance, if a
person is seen coming out from an unoccupied house in fear and
anxiety with a knife covered with blood in his hand, and in the house a
dead body is found with its throat cut, these facts in theory will be
regarded as proof that the person who is seen coming out murdered
him.
Circumstantial evidence cannot lead to Hadd punishment.
17. Oral and Documentary Evidence
Documentary evidence is also accepted.
Official documents, records of a court of justice, duly executed in the
presence of two witnesses and books kept in the ordinary course of
business are accepted in evidence.
It is common practice to prefer oral evidence to documentary
evidence. If documents alone are produced the Courts are to insist
upon examining the party that produced them. This could either
probably be due to the notion that it is easier to forge documents than
to lie in a Court or because of the vast illiterate mass of people whose
oral version was considered necessary to corroborate the facts of the
document.
18. Iqrar : Admission : Confession
Decrees could be given on admission, Iqrar. provided it was
unconditional and not made in jest or under coercion. Admission to be
admissible, must have been made by a competent person who is free,
sane and mature. The juristic theory is when a person makes a
statement against his own interest and it supports the claim made
against him, such admission or statement will not be binding on
others. The importance of admission was great in proving relationship,
paternity, dower-mahr. and was in civil cases generally.
In criminal cases a confession was admissible in evidence. However, a
confession made under threat or inducement was inadmissible
'The Qazi and the Amin should make thorough enquiries and not
decide the case on a mere admission or denial’ The ruling apparently
applies both to civil and criminal cases.
19. Iqrar : Admission : Confession
If an accused confessed his guilt and then retracted and the case was
proved, the sentence was to be less severe.
The law made a distinction between first offenders and habituals.
Sometimes the accused was given an opportunity of confessing his
crime and expressing repentance for it, and if he did so he was then
treated leniently. A statement made in a criminal case was admitted in
a civil suit against the person who made it. A woman’s confession of
Zina with a man or with a boy would not subject her to the stated
punishment of Hadd, A confession in a fit of intoxication was invalid .
20. Competency of Witnesses
According to juristic theory it is incumbent on a claimant to bring
evidence in his support. According to the law all those who believe in
Allah and respect the Book of revelation, i.e. the Qur’an, can be
competent witnesses - Adala.
A Qadi. the judge is in theory, was expected to keep himself informed
about truthful persons within his jurisdiction.
It was incumbent upon the law to take the precaution to prevent the
Court from being misled by falsehood. The believers could not be
rejected as untruhful unless proved to be so.
A person could be considered incompetent to depose as a witness if
s/he was an atrocious criminal, immodest person, a usurper, drunkard,
falconer, public mourner, professional singer, gambler, habitual liar,
convicted person, etc.
21. Competency of Witnesses
Those previously discredited as a witness were assumed to be
unreliable. In all temporal concerns the word of a reprobate, Fasiq
could be taken. The reason is if anything more than maturity of age
and sanity of intellect were required it would occasion a restriction in
business. A person whose character was unknown was considered in
the same light as an unjust man or reprobate.
It would follow that the testimony of a Fasiq would be admissible in
matters resulting in Tazir offences and not Hadd offences, as
Tazkiyaal Shuhud is not a prerequisite in former case. A Fasiq and
people who suffered for Qazf were competent witnesses to marriage.
In theory, in a Muslim Court evidence of a Muslim could be p referred
to a non-Muslim who 'does not respect the Books of revelation'.
The testimony of a non-M uslim was not altogether to be rejected.
Men of immature understanding were regarded as unfit for giving
testimony, such as infants, idiots, lunatics, or blind persons in matters
of ocular testimony, etc.
22. Competency of Witnesses
Two women together could be competent witnesses to corroborate a
fact for which the testimony of one man was sufficient. In cases where
women possessed special knowledge, the testimony of one woman
was relevant, e.g. proof as to virginity or child birth.
The father, grandfather, son and wife and vice versa were not
competent witnesses in favour of a man and vice versa, but in cases
where relationship was to be proved their statements were accepted.
A master in favour of his slave, or a partner in favour of an other
partner in matters relating to partnership property were in admissible.
The evidence of husband and wife in favour of each other was not
admissible.
23. Competency of Witnesses
Opinions of experts and the persons especially versed in some
particular branch of science, Mahirin-e-Fan such as physiognomy
were admissible in evidence. Recourse must be had to skilful persons
if the cause of the suit is doubtful.
Testimony was required to be given in the earliest possible time.
Distance of time, Takadim affects the value of the testimony. It is
understood that with passage of time sin is termotives might influence
a man.
24. Number of Witnesses
On an average two 'Adil' or truthful witnesses are necessary to support
a suit. The matter seems to have been discretionary with the Courts,
and the Qur'an has not prescribed any limit as such.
Four male witnesses are required in cases of Zina.
The testimony of one upright person that tends to injure the property
of another loses its probative value.
The Court may in its discretion accept the evidence of one witness
provided it is convincing and unreproachable.
The testimony of women witnesses was not admissible in all cases of
punishment and retaliation, for instance marriage, divorce, agency,
and concerning property, the evidence required was that of two men,
or of one man and two women.
In certain cases that do not admit of the inspection of men evidence of
one woman was deemed sufficient, e.g. proof as to virginity and
childbirth. However Muslim jurists insist on corroboration of
evidence. General rule is that there should be more than one witness.
25. Method of Recording Witness Testimony
Although it does not appear from the Hidaya that the adversary system
of examination in chief and cross examination was in vogue in Islamic
law but was the practice in Muslims. This could be a valid claim since
in Saudi Arabia where Islamic law is practised cross examination is
seen as a safeguard against perjuries.
The party producing a witness examined, (Izhar) him first and then the
other side could cross examine, (Jirah) him. The fourth Khalifa, ‘Ali
first adopted the rule that each witness should be kept separate and
then examined and cross examined separately so that 'one may not
hear the narration of the other'.
Leading questions were not allowed, to avoid the implication that the
Court is trying to help one party to the prejudice of the other by
putting questions and getting answers of facts that should be proved
by the witness.
26. Method of Recording Witness Testimony
If a witness was frightened or got confused, the Qadi could put such
questions as to remove his confusion, though they may be leading, but
not in such a manner as to make him liable to the charge of partiality.
The statements of witnesses were reduced to writing. The depositions
were read over to the witnesses by an other official, Saheb ul Maialis
(associate of the Qadi). Their name, lineage, address, and Masjid
(mosque) were written on the deposition. Then the Qadi used to put
his seal on it.
If a proper record of proceedings and decrees were not prepared in
conformity to the prescribed rules they were declared invalid.
27. Retraction of Evidence
A witness could retract his statement or evidence but such retraction
must have been made in Court before the order was passed.
If retraction was properly made, his evidence was to be rejected. If not
made in Court no notice was to be taken of the retraction.
If the retraction was made after the judgement was passed it would not
have affected the Court's order unless such evidence caused
miscarriage of justice for which the witness would be held liable.
2 .1 .3 E s to p p e l
In Islam ic law the p rin cip le o f estoppel is recognised. T his is
called B a v a n u d - D a r u r a t . 1 ^ A party could prove co n d u ct
by his adversary that precluded him from raising any p a rticu la r
claim or d e fe n c e .120
For exam ple, if a person seld an article in the presence o f the ow ner
w ho k e p t q u ie t th en th e o w n e r's su b se q u e n t a sse rtio n th
a t th e p erso n was not au th o rised to sell w ill be b a rre d by th e ru
le o f e s to p p e l.121
28. Oaths, Summons, Compulsion of Witnesses and Pleaders
Oaths, S a u g a n d . w ere adm inistered to w itnesses. The M uslim s
said 'by G o d ',122 or took an oath on the Q u r’a n ,123 the H indus
on the cow, and the C hristians on the B ib le.124 In N usrat Ali and
others vs. Oaim A li. the plaintiffs refused to take an oath and th eir
suit was d ism issed .1 2 ^
In another case, M o h iu d d i n vs. A n b a r t . the p arties w ere
allow ed to go to a m osque w here the p lain tiff was to take the oath.
A nbart, the defendant, was a H indu but he agreed to this p ro ced u
re.12^ The date o f these two cases could not be ascertained as the
source used by the author is in his possession only.
Sum m ons used to be issued to the w itn e s s e s .127 If the w
itnesses refused to give testim ony after the fulfilm ent o f all its
conditions, he sinned by abandoning a p ositive duty and d eserv ed to
be dism issed fo r h is w ic k e d n e s s .1 2 ^ It w as in cum bent upon
a w itness to bear testim ony. It was not law ful for them to conceal it
w hen the party co n cern ed d em an d ed it from th e m .1 2 ^
29. Oaths, Summons, Compulsion of Witnesses and Pleaders
T he ex cep tio n to this rule applies in H u d u d c a s e s .1 3 0 It
seem s th at in th e A bb assid and U m m ayyad period w itnesses w
ere com pelled to ap p ear in p e rso n .131
It seem s that the practice in M uslim India also w as to send sum m
ons to the p a rtie s,.132 and com pel the appearance o f the d efen d
an t.133 It is possible that it m ight have been the p ractice although it
would be d ifficu lt to assert w ith certainty. L itig an ts w ere allow ed
to prosecute in person or by th eir agents, W a k e e l s . T h e re w ere
som e very sp ecialised legal p rac titio n e rs (W a k e e l s ) in M
ughal India, but m ost W a k e e ls operated w ithin a w id er fram ew
ork as rep resen tativ es and b a rg a in e rs fo r th e ir c lie n ts .134 W
om en seem to have been very
often represented by W a k e e l s . 1 3 ^
