ASSIGNMENT

FIQH AL JINAYI-2

ADMISSIBILITY OF CIRCUMSTANTIAL EVIDENCE

SUBMITTED TO: DR. HAMEEDULLAH KHAN

SUBMITTED BY: MUHAMMAD SIBTAIN
REGISTRATION NO. 5764-FSL-LLB-F19

SHARIAH & LAW

INTRODUCTION:

There are two basic kinds of evidence that may be admitted in courts of law one, direct evidence which
does not require any reasoning or inference to arrive at the conclusion to be drawn from evidence,
such as eye witness, and two, indirect evidence, also known as circumstantial evidence, which requires
that an inference be made between the evidence and the conclusion to be drawn from it. 1

Black’s Law Dictionary defines circumstantial evidence as: evidence based on inference and not on
personal knowledge or observation.2

Osborn’s concise Dictionary defines Circumstantial evidence as: a series of circumstances leading to
the inference or conclusion of guilt when direct evidence is not available. 3

Nearly anything can be used as circumstantial evidence, so long as it helps create a picture of the
incident or crime, leading the judge to a valid conclusion. Facts that do not necessarily prove a
defendant’s culpability, such as prior threats made to the victim, fingerprints found at the scene of
the crime, testimony that a neighbour saw the defendant in the neighbourhood, or the fact that the
defendant was the beneficiary of the victim’s life insurance policy, are all circumstantial evidence.
Even in the absence of an eye witness to the crime, these pieces of evidence, when taken together,
certainly lead to the conclusion that the accused is guilty. 4 If a pocket handkerchief found dropped at
the scene of a crime bears a name on it, it is likely to be owned by a man bearing that name. Evidence
of the name on the handkerchief would be admissible to link its owner with the crime.5

CIRCUMSTANTIAL EVIDENCE IN ISLAMIC LAW:

In Islamic law, the word qarinah is used for circumstantial evidence. 6 The Lahore High Court (LHC) in
Allah Rakkha v. the State, held that “circumstantial evidence and ‘Alqariinah’ are both synonymous
and refer to circumstances surrounding an event from which an inference can be drawn for existence
or non-existence of the issue under investigation.”7

Shariah recognizes qarinah or circumstantial evidence in judicial proceedings.

The Holy Qur’an also discuss it, as in Surah Yousaf:

They raced towards the door, and she ripped his shirt from behind, and they found her master by the
door. She said, “What could be the punishment of him who intended evil with you wife, except that
he be imprisoned or (given) a painful chastisement?” He (Yusuf) said, “It was she who tried to seduce
me.” And a witness from her family observed that if his shirt was ripped from the front side, then she
is true and he is a liar; and if his shirt was ripped from behind, the she is telling a lie and he is truthful.
So, when he (her husband) saw his shirt ripped from behind, he said, “This is certainly your trickery, O
women. Great is the trickery of you women indeed. 8In this verse, the tearing of shirt was used as a
circumstantial evidence, which proved the innocent of Hazrat Yousaf. Hence, the admissibility of
circumstantial evidence is clearly established from the above referred verses of the holy Quran and
the same is accepted by the courts in Pakistan.

USE OF CIRCUMSTANTIAL EVIDENCE IN ISLAM:

The Holy Prophet has admitted the circumstantial evidence in number of cases. The two young ansari
boys who claimed that they have killed Abu Jahl during the battle of Badr. The Holy Prophet said to
them, “Have you cleaned your swords”. They said, “No”. The Holy Prophet examined their swords
being bloodstained, and said, "No doubt, you both have killed him”. 9It has been narrated with the
authority of Nu’man Ibn al-Jariyah who relates from his father that some people brought their dispute
about a hut to the Holy Prophet. The Holy Prophet sent Hudhayfath to decide their dispute. Hudhayfah
decided in favor of those to whom side the bamboos of the hut had come out. When he returned and
told the Holy Prophet, the Holy Prophet reaffirmed his decision and said, “Your decision is correct”. 10

Abu Hurayrah narrated that Holy Prophe said, “There were two woman who had a baby boy. A wolf
came and took away one of their babies. One of them said to other, “it was your son.” The other said,
“No, it was your son.” They brought their dispute to Prophet David and he decided in favour of the
elder one. Then they went to Prophet Soloman and related to him their dispute for decision. He
ordered to provide him a knife to make two pieces of the child so as to give one piece of each of them.
On this the younger one said “Don’t cut him into pieces, this is the son of the elder one.” Hearing this,
Prophet Soloman decided in favour of the younger one.”11The criminal proceedings and requirements
of evidence changes according to the rights involved. For instance, circumstantial evidence is
admissible in cases where the right of the ruler/state is in question. Hence, Muslim jurists concur that
circumstantial evidence is acceptable in ta’zirat where the rights of state/ruler are infringed. However,
they differ in accepting it in the crimes of hudud and qisas. There are three views in this matter. The
Hanafis and Shafis and with one exception Hanbali reject the use of presumption in Hudud and Qisas,
allowing only witnessed and confession as evidence. Their view is based on the hadith of the Holy
Prophet when he said, “Were I to stone anyone without evidence, I would stone so-and-so, for her
speech, appearance and cohabitation are such which raise suspicion.” 12

It has been narrated that a black man complained to Hazrat Umar and said, I am black, and my wife is
also black. But my wife gave birth to a red child. His wife said to Hazrat Umar I swear in Allah that I
have not committed illicit sexual intercourse with anybody and this is our legitimate son. Hazrat Umar
asked Hazat Ali about the situation. Hazrat Ali said to the man, Will you give me the true information
if I ask you anything, He said, Yes, Hazarat Ali said to him, Have you met your wife during her periods.
He said, Yes, Hazarat Ali exclaimed with joy and said, when human sperm mixes with blood, if gives
birth to a red child, so don't deny your son. You have done wrong with yourself. 13

CIRCUMSTANTIAL EVIDENCE AND PAKISTANI COURTS:

In number of cases, the Pakistani superior courts have discussed and examined the circumstantial
evidence. The circumstantial is normally used in such cases where direct evidence is not available.
Therefore, to punish the accused every circumstance should be liked in such a way to each other, that
the entire evidence should form a continuous chain and no link is broken. If the link is broken from
the chain, then the benefit will be given to accused person as held in Shabbir Ahmad v. the State. 14
Later on, this view was affirmed in Ameen Khan v. the State. 15

In Binyamin v. the State the Shariat Appellate bench of SC held that circumstantial evidence is one of
the recognized modes having origin from Islam to find out the guilt or innocence of accused. Such
evidence, if appeals to logic and reason, then same would be sufficient piece of evidence to connect
accused with commission of offence and capital punishment can be awarded on its basis.16

Whereas in Rizwan Ali v. the Commissioner17the court held that circumstantial has conclusive nature
and tendency and it should exclude every possible hypothesis, except the one to be proved and chain
of evidence had to be complete as not to leave any reasonable ground for the conclusion consistent
with the innocence of the violator.18 Earlier similar view was taken by the SC in Barkat Ali v. Karam
Elahi Zia.19

VIEWS OF MUSLIM JURISTS REGARDING CIRCUMSTANTIAL EVIDENCE:

Muslim jurists are of three different views regarding convicting a person basing on circumstantial
evidence and these are:
 a) Circumstantial evidence is admissible and can be based on in convicting a person in all offence
including Huddud and Qisaas. This view is based on the tradition of the Prophet which says:
‘If people’s claims were accepted on their face value some persons would claim other people’s
blood and properties but proof should be adduced by one who makes a claim. 20
They argue that proof is whatever brings the truth to light and circumstantial evidence can be
part of the proof.
b) Circumstantial evidence is not admissible in offences of huduud and qisaas. It is only
admissible in offence of taaziir. This means that a person cannot be convicted of crimes of
huduud and qisaas basing on circumstantial evidence. This is the view of majority of Muslim
jurists.21
The view is based on the following: The prophet (S.A.W) said: ‘Avoid application of huduud
punishments as far as possible. If you find a way out for a Muslim without applying hadd to
him, you should set him free for it is better for a judge to error in pardon than to error in
punishment.22The prophet (S.A.W) said: ‘If I were to stone anyone without proof, I would have
stoned soand-so (fulanah), for her speech, appearance and cohabitation are such which raise
suspicion.23
c) Circumstantial evidence is not admissible in crimes of huduud and qisaas apart from two,
namely:
• Adultery and fornication which can be proved by pregnancy of an unmarried woman
if there is no claim of coercion.
• Alcohol drinking which can be proved by its smell.

This view is based on:

• Umar the second Khalifah’s statement when he said that Adultery is proved when pregnancy
appears or confession is made.24
• Umar, Uthman and Ibn Masuud applied Hadd of drinking alcohol to whoever was found
smelling alcohol or vomited it basing on circumstantial evidence.25

While relying upon the circumstantial Pakistani courts showed extra care and were very careful, as
has rightly held by LHC in in Allah Rakkha v. the State that “courts have to be very careful and critical
while appreciating the circumstantial evidence. This exercise being delicate needs great care and
caution.”26Earlier, the Supreme Court in Naveed Asghar v. the State held that circumstantial evidence
“may sometimes be conclusive, but it must always be narrowly examined…...that the circumstances
should be ascertained with minute care and caution, before any conclusion or inference adverse to
the accused person is drawn.”27

CONCLUSION:

In absence of direct evidence, the last course of action for an investigator is to discover circumstantial
evidence to establish a link between the accused and occurrence of the crime. This type of evidence
is being used since long by the courts in modern and ancient times to convict the accused. However,
in modern times, digital evidence is a value-added addition in the discovery of crimes and criminals.
The courts do not solely rely on circumstantial evidence being indirect evidence, rather other
collaborative evidence is relied upon to convict the accused. Whereas, in Shariah, presumptive and
circumstantial evidence are admissible only in tazir cases, cases where punishment is not fixed and its
up-to the discretion of the judge depending on the nature of crime and the circumstances in which it
was committed. The crucial point for the courts is that they have to be extra conscious while
appreciating the circumstantial evidence in criminal proceedings. Fabrication chances are much higher
when the sole reliance is on circumstantial evidence, therefore, courts should take extra care.
 REFERENCES:

1. www.criminallawconsulting.com/circumstantial vs direct evidence.html. Accessed on 24/10/2017.

2. Emson, R. (2004). Evidence. 2nd Edition, New York, Palgrave Macmillan, p. 11.
3. Bird, R. (1983). Osborn’s concise law dictionary, 7 th Edition, London, Sweet and Maxwell, p. 73.
4. https://legaldictionary.net/circumstantial evidence. Accessed on 23/10/2017
5. Howard, M.N, Crane, P. & Hochberg, D. (1990). Phipson on Evidence, 14th Edition, London, Sweet &
Maxwell, p. 574.
6. Dr. Anwarullah, Islamic Law of Evidence. 2nd ed. (Islamabad: Shar’ah Academy, 2007), 63.
7. Allah Rakkha v. the State, Criminal Appeal no. 45 of 2013 decided on 05.10.2021.
8. Quran 12: 25-28. Quran 12: 26-28.
9. Sahih al-Bukhari 3141; Sahih Muslim 1752.
10. Ibn Majah, Al-Sunan, ii, 171.
11. Sahih al-Bukhari 6769; Sahih Muslim 1720a; Sunan an-Nasa'i 5402; Riyad as-Salihin 1827.
12. Sunan an-Nasa'i 3470 & 3471.
13. Ibn al-Qayyim, Al-Turuq Al-Hukmiyyah, 43.
14. Shabbir Ahmad v. the State, 2015 YLR 93.
15. Ameen Khan v. the State, 2015 MLD 553.
16. Binyamin alias Khari v. the State, 2007 SCMR 778.
17. Rizwan Ali v. the Commissioner (SMD), SECP, Islamabad, 2018 CLD 346.
18. Later on, this view was upheld by the court in Samar Jan William v. the State, 2002 MLD 1027. The same
view by SC (AJ&K) was taken in Muhammad Shafat v. the state, 2004 PCRLJ 864 SC (AJ & K).
19. Barkat Ali v. Karam Elahi Zia, 1992 SCMR 1047.
20. Albaihaqi, (1994). As-Sunan Al-Kubra, Makkatul-Mukarramah, Maktabat Daarul-Baaz, Vol: 10, p.252.
21. Azahrani, S. (1994). Taraikil – Hukum Fi Shariati- Islamiyah. 2nd Edition, Jeddah, Maktabat Aswahaabah,
p. 341.
22. Albaihaqi, (1994). As-Sunan Al-Kubra, Vol. 8 p. 238.
23. Bukhari, Swahihil-Bukhari, vol 7, pg 177, Ibn Maajah, Sunan Ibn Maajah, vol 2 p. 855.
24. Muslim, Swahih Muslim, Hadith no. 1691.
25. Saedon, M. (1996). An Introduction to Islamic Law of Evidence. Shah Alam, HIZBI, p. 124.
26. Allah Rakkha v. the State, Criminal Appeal No. 45 of 2013 decided on 05.10.2021.
27. Naveed Asghar v. the State, PLD 2021 SC 600.