ISLAMIC LAW OF EVIDENCE:

PRACTICE AND PROCEDURE

BY

MOHAMMED BELLO UTHMAN

Department of Islamic Law,
Ahmadu Bello University, Zaria

Being the content of a paper presented at the Annual Refresher Course for
Judges and Kadis organized by the National Judicial Institute held at the
Andrews Otutu Obaseki Auditorium on the 23rd of March, 2022

2022
 ISLAMIC LAW OF EVIDENCE: PRACTICE AND PROCEDURE

1.0 Introduction
The ultimate objective of the law and its machinery is to establish the doing of
1
justice. This implies the obligation upon the community to organize the institution of
justice in such a way that justice is enforced, each is given his due, and people are
brought closer to betterment and taken farther away from detriment. It follows that the
judge, or the court system, its practice and procedure, especially in the matter of
evidence, are the most instrumental organs in this regard. However, unlike the
Western, Roman-Germanic legal system, where the concept of separation of powers
limits the function of the judge to only judicial functions, the Islamic law brings the
office of the judge under that of the executive. The judge is actually a representative
(na‟ib) of the leader (hakim) and he discharges his function as such. In fact, the
leader, (Imam al-a‟zam) is possessed of judicial powers. According to Ibn Rushd (al-
Hafid), “There is no difference of opinion over the fact that the supreme leader (Imam
al-a‟zam) may pass judgment. The judge‟s legitimacy flows from his authority. I do
not know of any disagreement over this matter.”2
The objective of this paper is to identify the role of the court in the prominent
aspects of evidence and judicial procedure in civil and criminal matters. This task is
not a simple one for quite a number of reasons; firstly, there is a gap between the
classical works, which were written during the glorious, classical days of Islamic
civilization, and the present day mangled and distorted social set up within which
many Muslim countries exist. Muslims have still not woken-up from the effects of
colonization which have disturbed the free-flowing art of judicial procedure and the
proper implementation and administration of the law; secondly, information on
judicial procedure („ilm-al-qada) is interlaced with the substantive law except for a
few exceptions; thirdly, there is a problem with terminology. Certain concepts,
maxims and precepts are difficult to identify because of the difference in civilization,
language, usage and conventions; fourthly, the Islamic Law of procedure can hardly
be said to dissect its rules into a civil procedure, and a criminal procedure. The jurists
seem to discuss each topic by a distinct procedure. This has, because of its volume
and diversity, constituted difficult reading for many modern people who have been
awoken to a changing world that has departed, significantly, from the usages of the
past seven hundred years, even though we must be quick to add that many modern
rules of practice and procedure are rooted in the Islamic model of judicial procedure.

1.1 Scope of the Paper

Despite these limitations, attempt will be made to discuss the nature of judicial
procedure, the nature of admissible and non-admissible evidence, the position of the
witness, his qualifications, the weight of evidence, the methods of presenting evidence
and the interplay between oath-taking and judgment. We shall also be concerned with
the judge‟s responsibility on the bench and the judicial skills expected of him in
understanding claims, parties wherein the onus of proof lies, and when it is
discharged. Finally, we will draw conclusions as to the paper, raising certain
observations that, in our opinion, hamper the smooth application of the Islamic law

1
Al-Qur‟an, 57:25.
2
Ibn Rushd, (n.d), Bidayatul Mujtahid wa Nihayatul Muqtasid, Dar al-Fikr Vol. II, p. 345.

2
court system and proffer solutions in the form of suggestions we hope will go a long
way in improving the dispensation of justice, especially in Nigeria.

2.0 Definition of the Term al-Aqdiyah

Al-Aqdiyah is the plural form of al-Qada‟u and literally means judgment.
Similarly, the expression: qada al-Qadi or Fassala al-Hukumah, meaning: fassala al-
Khusumah i.e. determining the dispute.
Al-Adawi, commenting upon the above, states that the word carries eight
meanings. It should be noted that they are all literal implications, viz:
1) al-Hukmu (judgment); 2) al-Fira‟u (the fur on animals); 3)al-Halaaku
(destruction); 4) al-ada (to discharge a duty); 5) al-inha (to terminate, usually a
relationship); 6) al-mada (to execute); 7) al-San‟u to make; and to 8) al-taqdeer (to
determine).3
Technically, it has several meanings which culminate into the import of the
determination of a matter. Allah states: Wa lau la ajalun musamman la qudiya
bainahum (al-Shura;14) i.e. la fusila (“He would have determined the affair”).

3.0 The Status of Judge

According to Ibn Farhun, the art of judicial procedure („ilm-al-qada) happens
to be the most prominent of all the branches of knowledge because it occupies the
most elevated status and it is through its enforcement that the right to life and limb is
protected and lost; it is through it that marital rights are secured; and it is by it that
ownership of property is determined. The process to be undertaken is a maze of
hidden pitfalls with dreadful consequences.4
All the jurists are agreed that the institution of the judge is obligatory (wajib) -
an indispensable machinery of government. This obligation lies on the people as a
whole (fard-al kifayah). If a judge is appointed in a locality, then the people are
relieved of the burden and the responsibility shifts to the judge. This is a tremendous
burden placed upon the shoulders of the judge. It may also be a personal obligation
(fard „aini) if the person is the only qualified person or where the person is put into
fear for his life or that of his children, or even the public, if he does not accept the
post. If the leader appoints him, it is lawful for him to flee even if it is a fard kifayah
because judgeship is not the same as other types of fard kifayah. Accepting the post
may also be forbidden to him where he is ignorant or desperate for it, seeking worldly
gain from the position or he is tyrannical. It can also be encouraged for him where he
is appointed in order to make known his knowledge. It may also be permissible for
him if he needs to be paid from the public treasury where he is needy and has a large
number of defendants. It is discouraged where he accepts the appointment in order to
gain noble status in the public eye.5 If one who is selected refuses, he may be
compelled even by lashes and imprisonment and, if he has not been selected, it is not
obligatory upon him to either accept or apply for the appointment.6 Compelling a
person to accept the post of judge is also reiterated in the Mayyarah on the grounds
3
al-„Adawi, (1994), Hashiyatul- „Adawiy, „ala Sharhi Abil Hasan al-Musamma Kifayata-Talib al-
Rabbani li Risalati ibni Abi Zaidin al- Qairawani fi Madhhabi al-Imami Malik Radiyallahu „Anhu, Vol
II, Dar al-Fikr, p. 338.
4
Ibn Farhun., (1958), Tabsiratul Hukkam fi Usul al-Aqdiyah wa Manahij al-Ahkam, al-Babiy al-
Halabiy, (Misr), Vol I, pp 5-6. “Dreadful consequences” imply the effects of miscarriage of justice and
all that it entails such as apply to marital rights, social responsibility and ,worse still, loss of rights to
life and limb.
5
al-„Adawi, op. cit. Vol. II, p.338.
6
Ibid.

3
that fundamental principles will be preserved if the office of the judge is occupied by
one sound in knowledge and character. The advantages are enormous to society and
this is what overrides the interest of the individual. Some of the advantages are that
the following will be guaranteed: the receiving complaints in a civil way, restoration
of rights, the restraining of wrong doers and defending victims of offences and
wrongs, putting an end to feuds, and enforcing good and forbidding evil.7

3.1 Merits of the Post

The Prophet (S.A.W) said:
“There is no envy except in two cases: a man who is
bestowed with wealth by Allah and causes him to spend it
in the right way; and the one gifted in the art of
adjudication (hikmah) and by which he passes
judgment.8”
It is also reported from A‟ishah (R.A) that the Prophet (S.A.W) said: “Do you
know the first to enter the shade of Allah on the Day of Judgment”? They said:
“Allah and his Apostle know better”. He said: “He is the one whom, if given his due,
accepts it, and, if a duty is demanded of him renders it, and when he decides between
Muslims, does so as he would in his own matter.”9 It is also reported from ibn Mas‟ud
(R.A) that “It is more pleasing to me that I should be blessed with a day of fair
judgment than to spend seventy years in worship.”10Could it be said, from this, that
there is a contradiction between this encouragement and the many reports received
from the Prophet (SAW) that tend to discourage acceptance of the appointment of
judge such as „ Whosoever is appointed as judge has verily been slaughtered without
a knife‟?11 Ibn Farhun explains that all the reports received from the Prophet (S.A.W)
containing stern words discouraging the acceptance of appointment as judge only
concern judges that are ignorant, or knowledgeable but corrupt. Furthermore, the
learned folk have said that the tradition “Whoever is appointed as judge has verily
been slaughtered without a knife” is authority that actually proves the elevated status
of the judge, and that the one who takes up the challenge is like the one who fights in
the cause of Allah as he sacrifices himself and his desires, ignores personal
relationships and the grumblings and mutterings of the insincere. He ascends to the
status of martyrs and those admitted to paradise. This is the reason why the Prophet
(S.A.W) appointed great men such as Ali, Mu‟adh and Mu‟aqqil bin Yasar (R.A) as
judges. In the words of Ibn Farhun: “O how excellent the sacrificer and the
sacrificed”.12. We understand from the above authorities that the risk is not in the post
itself, but, rather, in corrupt behaviour.
On the other hand, the fact exists that the burden of the responsibility is quite
enormous. It is obligatory upon all that tread the path to do so with extreme caution.
Some of the learned have said that the post of judge is a great responsibility and
whoever bears it is surely subjected to great trial, because surviving the risk is
something quite difficult. According to Abu Qilabah: “The similitude of the judge to

7
Mayyarah, (al-Fasiy), (n.d) Sharhu Mayyaratil-Fasiy ala-Tuhfatil Hukkam, Dar-al-Fikr Vol. 1, p. 10.
8
Ibid, Vol. 1 p. 13.
9
Ibid.
10
Ibid.
11
Reported by Abu Dawud and al-Tirmidhy. al-Tirmidhy held it to be hasan, gharib.
12
al-Fasi, op. cit.,Vol I, p. 14.

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that of his responsibility is that of one who swims in an ocean. Many a man would
swim until he drowns.”13

3.2 The Qualifications of the Judge

The judge must be sane, free, Muslim, adult, male and of impeccable
character.14 There is an opinion within the Maliki School that says that the judge, who
is a transgressor (fasiq), must be removed but his judgments stand.15 There is a
difference of opinion over the requirement of the judge being capable of undertaking
independent legal reasoning (ijtihad). Imam al-Shafi‟iy held that it is essential.
However, according to Imam Abu Hanifah and the Malikis, it is only laudable that the
judge be capable of undertaking ijtihad. He must also be possessed of sight, speech,
and hearing and be aware of the rules of judicial procedure.16 There is a difference of
opinion over malehood. The majority hold that it is essential. Abu Hanifah held that
the woman can be a judge only in cases involving property. According al-Tabariy, the
woman may be a judge in all cases. The majority, who reject the woman as judge,
base their argument on the similarity between the office of the judge and that of the
supreme head. Those that allow her to hear suits involving property argue that there is
a general permission allowing all persons capable of discernment to pass judgment
except that there is an exception by way of consensus of the jurists (ijma‟) regarding
the post of the imam al-kubra, (supreme head)17. In all humility, the view of the
majority is better. Imam Abu Hanifah‟s opinion should be read with the utmost
caution. Evidence of females, even in amwal cases, demands at least two female
witnesses,18 before their testimony ranks as that of one male‟s testimony. How then
can the woman be expected to decide ultimate issues concerning property rights? To
allow the woman to be a judge, absolutely, as in Ibn Jarir‟s opinion, is clearly absurd
(shadh), isolated and very shaky. Further, the same reasons that negate testimony of
women in the hudud and qisas matters are the same reasons why the woman‟s
appointment as judge must be rejected.
Ibn Juzay has mentioned some requirements of the judge even though he
considers them to be additional and not fundamental. For example, he mentions
possessing the rank of ijtihad, being austere and pious and avoiding pitfalls even if
they happen to be permissible. He adds that the judge should be financially self-
sufficient, and not indebted. If he is indebted or poor, the state shall offset his
financial burdens. He is expected to be patient, composed and to keep a straight face.
He should be given to mercy and compassion. He should be fearless and ignore
pressure from influential folk to be partial in his judgment. It is preferable that he be a
product of good lineage and not an illegitimate child, or a child being the subject of
the process of li‟an (mutual imprecation). He should not be a person punished by way
of hadd even if this was done before he repented and mended his ways. He should be
bright and alert, not dull and absent minded.19
According to the Malikis, there are certain conditions that are prerequisite to
an appointment as judge. Examples of these are sanity, male hood and freedom. All

13
Ibid. See also al-„Adawi, op. cit. 338-339 for an extensive discussion on this point.
14
Ibn Rushd, Op. Cit. Vol. II p. 344. See also Ibn Juzay, al-Qawanin al-Fiqhiyyah, Dar al-Fikr, p. 253.
15
Ibn Rushd, Op. Cit. Vol. II p. 344.
16
Ibn Juzay, Op. Cit. p. 253.
17
Ibn Rushd, Op. Cit. Vol. II p. 344; Ibn Juzay, Op. cit. p. 253.
18
Al-Qur‟an, 2:282.
19
Ibn Juzay, Op. cit. p. 254. In the Risalah we read “Fa la tasihu wilayatu muqallidin ma‟a wujudi
mujtahidin”. Refer to al-„Adawi, op. cit. Vol.II, p. 339.

5
decisions passed by persons not possessed of these qualifications must be quashed and
the judges must be removed from office at once as their decisions are regarded as null
and void. On the other hand, there are some prerequisites that obligate removal of the
judge, if they are not possessed, but their previous decisions remain valid. Examples
of these are fisq, (such as the judge not being of honourable character), or not being
possessed of sight, hearing or speech. Here his decisions will remain binding except
those that are clearly based on corruption.20
Another area of difference among the jurists is whether it is lawful to appoint
two judges in the same city. According to Malik, there shall only be one judge in a
city. However, according to al-Shafi‟iy, it is permissible for two judges to man
separate courts within the same city if their jurisdiction is clearly spelled out. If,
however, their agreement over every legal verdict is required, then it is not lawful.21
It appears that the best opinion is that only one judge or court should exist in
the city. If the city is large, this would cause excessive difficulty in the dispensation of
justice. We suppose, and Allah knows best, that al-Shafi‟iy was driven to his decision
because of his experiences in many large centres of civilization he visited such as Iraq
and Egypt.
There is a difference of opinion where parties submit themselves to a private
person for arbitration. Imam Malik allowed it but, according to al-Shafi‟iy, in one
report recorded from him, it is not allowed. Abu Hanifah held that it is allowed if the
decision does not go contrary to the precedents of the official court.22

3.3 Judicial Ethics

It is expected of the judge that he sit in a place accessible to everyone, the
weak and strong alike. Some jurists have preferred that he sit outside the mosque as
this will enable all to access justice such as menstruating women and non-Muslims. It
is essential that he treats all parties equally and must not show any signs of partiality,
or special treatment to one party23 in terms of how he seats them, talks to them, listens
to them or pays regard to them. He must not allow wealth, status or blood ties to
influence the conduct of his court.
It is required that the judge sit at specified times so that everyone is well
acquainted with the times for court sessions. This is also necessary that he might
reserve some periods for rest or research. He shall not sit in the nights or during rest
days.
It is unethical for the judge to proceed in a trial or suit when he is in the state
of hunger, thirst, anger or when he is otherwise upset. The judge shall consult learned
men, and be guided by their opinions.
It is prohibited for the judge to pass judgment or hear evidence in the absence
of one of the parties. It is prohibited for the judge to accept gifts from anyone except
close relatives that would give him gifts if he hadn‟t been a judge. It is also prohibited
for the judge to seek favours from others. This is prohibited whether the favour is in
form of loan or otherwise. It is unethical for the judge to go shopping. He must find a
person to assist him in this regard. It has been said that that person should not be
constant so that it does not become common knowledge that he is the judge‟s errand
boy or agent. This could lead to concession being granted to the judge indirectly.

20
Ibn Rushd ,Op. Cit. Vol. II P. 344-345.
21
Ibid.
22
Ibid.
23
Ibn Juzay, Op. Cit. p.254.

6
 It is unlawful for the judge to pass judgment in favour of his descendant or his
ascendant. The case is to be transferred to a neutral judge. But it is said that it is
lawful for the judge to pass judgment against such a person. Conversely, it is not
allowed that he pass judgment against his enemy. But he may pass judgment in his
favour.
It is the duty of the judge to deal promptly with any party that behaves
contemptuously towards his adversary or towards the court.
According to Ibn Juzay, in such circumstances, to punish for contempt is
better than to pardon.
Another ethical responsibility of the judge is that he shall not mix freely and
loosely with people in social gatherings or elsewhere, except there is a pressing need
for it. He shall not make merry appearances and joke freely with the people. He must
maintain a deep sense of calmness. He shall not attend feasts unless they are marriage
feasts and, even so, he shall avoid eating at the feast.
It is expected of the judge to select or appoint a trustworthy registrar. He is
also to inspect the prisons and release, there from, anyone unjustly imprisoned.
The judge shall not review cases decided by his predecessor unless there is
clear evidence of injustice and corruption. He may also review his own judgment if it
becomes clear to him that he had erred manifestly. He shall supervise his court
personnel and stop them from touting with people. He should conduct discreet
investigation concerning the uprightness of the witnesses giving testimony before his
court.24

3.4 The Judge’s Role in the Matter of Procedure

The judge has jurisdiction to try cases involving public and private matters. He
may supervise marriage contracts, appoint trustees or administrators and, according to
a section of jurists, he may even delegate his powers in sickness or travel if he is not
given the authority from the onset.25
The jurists are settled over the matter that, in cases of property rights, a
judicial decree that makes the prohibited lawful, or vice-versa, shall not be binding.26
There is a difference of opinion as regards marital rights where the judge errs and
passes erroneous verdict. According to the majority, property rights (amwal) and
matrimonial rights (furuj) are the same in this regard. Therefore, a judicial decree of a
judge will not be binding if it makes the lawful prohibited or vice-versa. An example
of this is where a witness gives false evidence as to the matrimonial status of a woman
to another man. According to the majority of jurists, she never becomes lawful to the
purported husband despite the judicial pronouncement. However, according to Abu
Hanifah and his disciples, she becomes lawful.27

3.4.1 Discerning between the Plaintiff and Defendant

When a case is brought before the judge, he must treat the parties equally and
ask the plaintiff to lay his claim. If he pleases, he may ask them “Which of you is the
plaintiff‟‟? It is essential to note that discerning between the plaintiff and the
defendant is one of the most important aspects of procedure. According to the author
of the Tuhfah: “Discerning between the plaintiff and defendant comprises the ingot of

24
For a good decision on the ethics of the judge, please refer to Ibn Juzay, Op. cit. pp. 254-255.
25
Ibn Rushd, Op. cit. Vol. II, p. 345.
26
Ibid.
27
Ibid.

7
judicial skill.”28 Ibn Juzay reports that Sa‟id bn al-Musayyib used to say: “One who is
able to determine who is the plaintiff, and who is the defendant will find it easy to
decide the matter between the parties”.29 It is said that the plaintiff is the one stripped
of advantage in terms of possession, circumstances and convention. Therefore, the
defendant is presumed stronger and the burden of proof lies upon the plaintiff. It is
also said that the one who claims a thing, or state of things, is the plaintiff, and the
one who denies that thing or state of things is the defendant. 30 Some say that the
plaintiff is the one who sues and the defendant is the one who is sued.31 Some of the
scholars state that the plaintiff is the one who claims (kana) and the defendant is the
one who claims that it did not happen (lam yakun).

3.4.2 Understanding the Concept of the Burden of Proof

Evidence is required from the plaintiff because he is the weaker of the two parties and
labours under the burden of proving his claim; and the defendant, who is usually the
stronger of the two parties, takes the oath as the presumption of being in the right lies
in his favour. (“min ajli annahu yuridu an yuthabbita, wa ju‟ilat al-yaminu ala man
ankara li‟annahu aqwa janiban min ajli annahu yad‟iya al-asla idh al-aslu bara‟atu
al-dhimmah”). The Author of the Risalah mentions the famous hadith of the Prophet
(SAW) “Al- Bayyinatu „ala al-Mudda‟i wal yaminu „ala man ankara”. According to
the Maliki jurists, this precept is limited to two perspectives: khultah in contracts
(Mu‟amalat), and dying declarations (tadmiyah) in criminal matters. It does not
require evidence (bayyinah). It only requires strong circumstantial evidence (al-
lauth). It is stated In the Hashiyah that some may misconstrue this expression to mean
that this type of dying declaration is alone sufficient to lift the obligation to produce
evidence, but in reality it is dependent upon availability of testimony to the dying
declaration. The statement “wal-yaminu „ala man ankara” carries the apparent import
that it is immaterial that there was a dealing (khultah) but this has been clarified by
the words “wa la yamina hatta tuthbita al khultah au al-zanna”.
Khultah is established by the confession of the defendant or by the evidence of
two reliable witnesses or by the testimony of one witness and the oath of the plaintiff.
Zanna occurs only in the case of the thief and the usurper. Therefore, khultah occurs
in the Mu‟amalat, and Zinnah occurs in matters related to the ahl al-ghasabat even
though the author of the Mukhtasar states that khultah can be proven by the testimony
of one woman. The author of the Risalah then states: Kadhalika qada hukkamu ahl al-
Madinah and he followed this up with the famous statement of Umar bin „Abdil-Aziz:
“tuhdathu linnasi aqdiyah bi qadri ma ahdathu min al-fujur” meaning that novel
practices in the law of procedure can be introduced to cater for the evil machinations
of people.
An example of mukhalatah is where the plaintiff claims that the defendant
owes him money – the purchase price of an article sold to the defendant, and it is
shown that the defendant was in the habit of collecting goods on credit from the
plaintiff.

28
Daura, U. M, (1996) Jagorar Masu Hukunci, (A Translation of ibn Asim‟s Tuhfah) al-Hudahuda,
(Zaria) p. 6.
29
Ibn Juzay, Op. cit. p. 257.
30
Ibid.
31
Ibid.

8
 According to Ali bin Abi Talib, (R.A.), the Seven fuqaha of Madinah, and
Malik, it is obligatory to prove mukhalatah or mulabasah (prima facie evidence of a
transaction between the parties). This may be by admission, two witnesses testifying
to it, or one witness and the oath of the plaintiff. It is after this proof that the court will
require the defendant to take the oath. It is reported in the Muwatta of Malik that
Jamil bin Abdirrahman al-Mu‟adh-dhin used to attend Umar bin Abdulazeez‟s court.
If there was a claim against the defendant, he would look into the matter. If there were
signs of a prima facie transaction between the parties, he would cause the defendant
to take oath. But if there was none, he would not cause him to take oath. Malik,
therefore, said: “By this, the law with us (al-amru „indana) is that the claim of the
plaintiff is to be looked into (nuzira). If there happens to be prima facie evidence of
some transaction, justifying the claim, then the defendant will have to take oath. If he
does so, the claim is to be dismissed, but if he declines, the plaintiff takes the oath and
claims the right.32
Where the plaintiff is required to adduce evidence, the judge shall adjourn the
matter to a future date, in a reasonable way, regard being had to the nature of the
claim. If it entails having to adjourn several times, the judge will grant the
adjournment. In this respect, the judge is expected to use his good discretion.

4.0 Evidence

4.1 Definition of Evidence (al-Shahadah)

It is the root form of the word shahida meaning akhbara, i.e. he gave
information/testimony.
Its legal position is that it is a general obligation (fard al-kifayah), but if there is only
one person to give it, it is a personal obligation (fard al-„ain). If he refuses to give it,
he is a sinner and may be compelled by lashes or detention.33

4.2 Ibnu ‘Asim’s Categorization of Evidence

Ibnu „Asim has explained the nature of evidence in relation to the requirement
and effect of oaths. In his words:
“ ‫خّس تاالستمشاء‬ ‫ا‬ٙ‫جٍّت‬ ‫ األاء‬ٜ‫ادج ٌذ‬ٙ‫‘ثُ اٌش‬
meaning: “Testimony, in terms of adducing of evidence, is classified into five types
by induction”. These five are discussed in an abridged fashion hereunder.
1) Complete testimony that does not require oath taking (Tujibul-haqqa bi la
yamin)- there are six (6) types of this form as described below

ٓ‫اٌذك تال يّي‬ ‫جة‬ٛ‫أْ ت‬ ٓ‫ اٌتؼيي‬ٍٝ‫ال٘ا ػ‬ٚ‫يخ تص أ‬

(A) ‫س أستؼح‬ٛ‫ اٌزٔا ِٓ اٌزو‬ٝ‫ فف‬- Four witnesses in cases relating to zina

32
Abdul-Baqi, M.F. (n.d) al-Muwatta lil Imamil A‟immah wa „Alim al-Madinah Malik bin Anas (R.A)
(Edited) Isa al-Babiy al-Halabiy, p. 570.
33
al-„Adawi, op. cit., vol. II, p. 343.

9
 (B) ٗ‫ اثٕيٓ سؼ‬ٝ‫ِا ػذا اٌزٔا فف‬ٚ -Two male reliable witnesses in cases that do not
relate to zina.

‫ وً ِا يشجغ ٌٍّاي اػتّذ‬ٝ‫ف‬ ‫سجً تاِشأتيٓ يؼتضذ‬ٚ

(C) (One reliable male witness and two female witnesses in property and property
related issues)

‫إال إٌساء واٌّذيط ِمٕغ‬ ‫ اثٕتيٓ ديث اليطٍغ‬ٝ‫ف‬ٚ

(D) (Two females in matters that males are not supposed to see; for example,
menstruation and child birth)

‫ ٔظش‬ٜ‫ ػٕذ وً ر‬ٌٝٚ‫اثٕاْ أ‬ٚ ‫ تاب اٌخثش‬ٝ‫ء ف‬ٜ‫ادذ يجز‬ٚٚ

(E) (One person in giving expert opinion (khabar) even though two witnesses are
preferred). For example, the expert in semblences (qa‟if); or those sent by the
judge to receive an oath, or verify the prescription of a land or house; the opinion of
medical experts; translators; those appointed to smell the breath one accused of
drinking wine. It is preferred that they be „adlain unless this is not possible, the
expert opinion of others can be sought, even if they be disbelievers.34

ٝ‫ُ لذ اوتف‬ٕٙ‫لتً تي‬ٚ ‫جشح‬ ٝ‫ادج ِٓ اٌصثياْ ف‬ٙ‫تش‬ٚ

‫سج‬ٛ‫ع اٌٍص‬ٛ‫ل‬ٚ ٝ‫اإلٔفاق ف‬ٚ ‫سج‬ٛ‫اٌزو‬ٚ ‫ا اٌتّييز‬ٙ‫ششط‬ٚ
‫ف أْ يثذال‬ٛ‫ُ وثيش خ‬ٙ‫في‬ ‫ يذخال‬ٚ‫ا أ‬ٛ‫ِٓ لثً أْ يفتشل‬
(F) The evidence of minors in hurts and homicides is admissible subject to fulfilling
certain conditions such as attaining the age of discretion (tamyiz), malehood,
concurrence as to the description of the occurrence, the evidence being received
before the minors separate and before a grown up person enters into their midst for
the fear that their testimony may be doctored.

2) Where the claimant can win his claim with an oath alongside his witness in
property cases or property related issues.

‫ف ي ال‬ ‫يال أو يا آل ن هًال ت ؤوث اَ يت ت ىجب ح قا يع ق سى‬

There are four (4) types of this form.

A) One reliable witness in a property or property-related matter. This may be

complemented by the oath of the claimant.
‫وايرأت اٌ ق اي تا ي قايه‬ ‫شهادة ان عذل ن ًٍ اق ايه‬

34
Daura, U.M. op cit p. 54.

10
B) Two reliable female witnesses alongside the oath of the claimant.

ٍ‫ارخاء س تروح ت ياز ره‬ ‫وهاه ُا عٍ شاهذ ق ذ ي غ ُي‬

C) Where the local custom or natural disposition can be aided by oath of the
claimant, such as a wife claiming consummation after valid retirement. This
suffices as one witness for her. She may take oath and claim her full sadaq.
Some have added that there shouldn‟t be any hinderance (mani‟); or a pledged
item in the hands of the pledgee is constructive evidence equivalent to one
reliable witness, a basis for oath; or possession being a determining factor in
the event of no/equal evidence. The one in possession shall take oath and
claim the subject matter.
‫ت كاف أث ب ي ُ تاٌ ف‬ ٌ‫ا س ت بٍوان يذ يع يجرد ان ذعىي أو وإ‬

‫ رٌه خٍف ػٍّا‬ٜٛ‫ س‬ٝ‫ف‬ٚ ‫ اٌمسّا‬ٝ‫ ػٍيٗ تأت‬ٝ‫اٌّذػ‬

ٝ‫ط ِا ادػ‬ٛ‫ تسم‬ٝ‫يمض‬ٚ ‫تؼذ‬ ٝ‫ي اٌّذػ‬ٛ‫ال يّيٓ ِغ ٔى‬ٚ
‫تذيث ال يصخ لطغ ػادج‬ ‫ادج‬ٙ‫غاٌة اٌظٓ تٗ اٌش‬ٚ
(D) Strong circumstantial evidence can stand in as a witness where natural
disposition cannot be discountenanced, such as in the case of the mu‟sir who
claims poverty. Evidence of his suffering hunger or bearing signs of difficulty, or
otherwise, can be evidence for him or against him. Similarly, the evidence of
neighbours based upon events can be adduced to arrive at the conclusion that the
husband is cruel to the wife.

ُ‫ليفا تٗ دىُ اٌذى‬ٛ‫جة ت‬ٛ‫ت‬ ُ‫جة اٌذك ٔؼ‬ٛ‫ٌثا الت‬

ٝ‫ اإلػزاس فيّا تمتض‬ٝ‫تم‬ٚ ٝ‫ادج تمطغ استض‬ٙ‫ ش‬ٝ٘ٚ
‫ب‬ٚ‫ ػٓ أجً ِضش‬ٕٝ‫فال غ‬ ‫ب‬ٍٛ‫فيف ِٓ اٌّط‬ٛ‫ديث ت‬ٚ
ًّ‫ا تٗ صخ اٌؼ‬ٙ‫ٌٕمً ِا في‬ ً‫س غٍك ِغ أج‬ٚ‫لف ِا واٌذ‬ٚٚ
‫ف ف يه ت ىق يف ان خراج و ضحا‬ ‫ويان ه ك ان فرٌ خرج وان رحا‬
‫لف اٌىش‬ٛ‫ي‬ٚ ٜ‫اٌذظ يىش‬ٚ ‫ األسض إٌّغ ِٓ أْ تؼّشا‬ٝ‫ ف‬ٛ٘ٚ
‫ي أتخة‬ٚ‫األ‬ٚ ‫ٌٍذظ ِٓ راٌه‬ ‫ تمذس ِايجة‬ٚ‫ليً جّيؼا أ‬
‫ا أٌف‬ٙ‫ال يزاي ِٓ يذ ت‬ٚ ‫لف‬ٚ ً‫شا٘ذ ػذي تٗ األص‬ٚ
‫ِٕٗ إرا ِا أِٓ اٌفساد‬ ‫لف ِا يفاد‬ٚ ‫اتفاق‬ٚ
‫ف ً حق يٍ ي ح كى غ ير ب ي ُت وح ي ثًا ي كىٌ حال ان ب ي ُت‬
ً‫تمذس ِا يستىًّ اٌتؼذي‬ ‫ي‬ٛ‫لف اٌفائذ ال األص‬ٛ‫ي‬
‫وق ف ال ألٌ ي ري ق ذ دخ هه‬ ‫وك م شًء ي سرع ان ف ساد ن ه‬

‫وان ح كى ب ي عه وت ىق يف ان ثًٍ إٌ خ يف ف ي ان ت عذي م يٍ طىل‬

ٍ‫تٗ لاَ تٗ اٌثش٘اْ ان سي‬ٛ‫ثث‬ ْ‫إٌشذا‬ٚ ‫ واٌؼثذ‬ٝ‫اٌّذػ‬ٚ
‫ ِستذك‬ٛٙ‫ليف ف‬ٛ‫إْ طٍة اٌت‬ ‫ اٌسّاع أْ ػذٖ أتك‬ٚ‫أ‬
‫س‬ٛ‫ تيٕح دض‬ٝ‫ديث ادػ‬ ‫ا يسيشا‬ٙ‫ل‬ٛ‫ ف‬ٚ‫ٌخّسح أ‬
‫ػٍيٗ ِا اٌمسُ ػٕٗ استفؼا‬ ٝ‫إْ تىٓ تؼيذج اٌّذػ‬ٚ
11
 ‫ُ يّيٕٗ تشد‬ٙ‫تؼذ تالي‬ٚ ‫ذ‬ٙ‫وزان ِغ ػذي تٕشذاْ ش‬

3) This form does not grant rights but will justify an order of injunction pending
the final determination of the claim.
‫ليفا تٗ دىُ اٌذه‬ٛ‫جة ت‬ٛ‫ت‬ ُ‫جة اٌذك ٔؼ‬ٛ‫الت‬

For example, producing one reliable witness, or one witness awaiting tazkiyah.
In cases where two witnesses are brought, and the defendant claims he has
evidence to counter the witnesses‟ testimony, he shall be allowed to do so but
if the subject matter of the dispute is a house, for instance, the house shall be
locked up after he is given three days‟ notice, and if the subject matter is in the
form of proceeds (ghallah), that will be kept under the court‟s custody. Lands
will not be subject to use.

If one produces one witness and is invited to take oath, and he declines
because he hopes to get another witness, the subject matter may be restrained by order
of court until such a witness is produced.
In perishables, such as meat, fruits and so forth, the subject matter shall be
sold by order of the court. The money shall be given to the plaintiff if he produces
satisfactory witnesses; and the defendant shall collect it if the plaintiff‟s witnesses are
not.
‫ال اٌذىُ ٌىٓ ٌٍّطاٌثيٕا‬ ‫ساتؼح ِا تٍزَ اٌيّيٕا‬
ٝ‫ لزف يف‬ٚ‫ ػتاف أ‬ٚ‫طالق أ‬ ٝ‫ اثٕتيٓ ف‬ٚ‫ادج اٌؼذي أ‬ٙ‫ش‬

‫زوج ف سجٍ ن عاو ان عًم‬ ‫وت ىق ف ان سوجت ث ى إٌ َ كم‬

ٓ‫ال تزي‬ٚ ‫ا‬ٙ‫تّٕغ ٔفس‬ ٓ‫جح إر يذي‬ٚ‫ليً ٌٍز‬ٚ
4) That which obligates the oath, not the right
ُ‫ال اٌذى‬ ‫ِا تٍزَ اٌيّيٕا‬
(Ma talzimul yamin la al-hukm). For example, one reliable male witness or
two reliable female witnesses as to marriage, divorce, „itq or qadhf. For
example, in a claim that a husband divorced his wife and one male reliable
witness or two female witnesses give evidence, the husband shall be ordered
to take oath and, if he refuses, he may be detained for up to a year until he
swears or effects divorce after which the wife shall be instructed to refuse
herself to him and not to beautify herself; or in a claim of qadhf the claimant
produces one male or two females, the defendant shall be ordered to take oath
and escape liability. If he refuses and the plaintiff cannot produce satisfactory
testimony, he shall be released. This is cognate to what ibnu Juzay refers to as
drawing obligation upon the defendant to take oath if prima facie evidence of
a dealing between the parties (khultah) is established. After taking oath, the
defendant is relieved, and if he does not swear, the plaintiff, according to the
Malikis, will be offered the oath so that he swears and claims the right;
otherwise he fails in his claim. According to Ibn Harith, “Every party that is
obliged to take oath in property and injury cases, and that party declines to

12
 take oath, the oath shall be offered to the other party whether that other party
makes application for it or not.‟35
Where, however, the case is of the nature that only accommodates two male
witnesses such as marriage, divorce, emancipation, intentional homicide, and so
forth, there is no opportunity for the defendant to take oath, and the plaintiff, as
well, will not be invited to take oath. Nothing, also, becomes due by the bare claim
of the plaintiff. This is the position of the majority of jurists and which is contrary to
that of al-Shafi‟iy.36

It has been reiterated in the Risalah that where a matter requires two reliable
male witnesses, resorting to one witness and an oath is not permissible in the matters
of marriage, divorce, and prescribed penalties (hudud). “wa la yuqda bi dhalika
(bish-shahidi wal yamin) fi nikahin au talaqin au haddin wa innama yuqda fiha bi
„adlain”. It should be reiterated that this rule only contemplates property and
property-related amwalwa ma adda ilal amwal) cases.37 In the Mudawwanah, it is
said that if a man claims to have married a woman and she denies it he shall not be
asked to take oath even if he produces one witness, as a marriage is suspended upon
two reliable male witnesses. Similarly, in a wife‟s claim that her husband divorced
her, and she produces one witness, she shall not be called upon to take oath to support
his testimony. By this, the oath will be returned to the husband. If he swears, he shall
be let off; and if he declines to swear, divorce shall be pronounced against him. A
further example is stated in the Hashiyatul-„Adawi. In the hadd, where a person
claims that another had defamed him, and produces one witness, he shall not be
allowed to swear alongside the witness just as the accused person shall not be given
the hadd. Rather, the oath shall be returned to the accused person. If he swears, he
shall escape liability, and if he does not, he shall be detained until he swears.
Similarly, the procedure of using one witness and an oath shall not be resorted to in
cases of intentional homicides and hurts but, in mistaken cases, the procedure is
permitted because the matter tilts toward property (i.e. payment of compensation).
This rule even extends to cases that do not involve qisas such as the ja‟ifah and the
„Aammah. An exception lies in the words “illa ma‟a al-qasamati fin-nafs implying
that the qasamah may be resorted to in the event of one witness and without an oath.
No jurist is known to have held that one witness can be used alongside an oath and the
qasamah. Al-„Adawi goes on to say that resort can be had to one witness and the
oaths of qasamah without the oath of the claimant if the presence of lauth is proven.38

ً‫ التمث‬ٝ‫ادج اٌت‬ٙ‫ اٌش‬ٝ٘ٚ ًّ‫ا ػ‬ٙ‫خاِسح ٌيس ػٍي‬

ٝ‫ ِذشاّ٘ا ِّا أت‬ٜ‫ِا جش‬ٚ ‫اإلتٓ ٌألب‬ٚ ‫س‬ٚ‫وشا٘ذ اٌز‬

5) Inadmissible evidence, such as false testimony (shahadatuz-zur); and evidence by

a father in favour of his son, etc.

35
Ibn Juzay, Op. cit., pp. 259 – 260 for a broad discussion.
36
Ibid, p. 259.
37
Al-„Adawi, op. cit. Vol II, p. 343.
38
al-„Adawi, op. cit. vol II, p 344.

13
4. 3 Aftermath of Evidence
Ibnu Juzay has provided further elaboration on this by stating that after
evidence has been given, judgment can be entered in favour of the plaintiff after the
defendant has been given all opportunity to repel the evidence admitted. This can be
done by the court calling upon the defendant to enter into his defence (i‟dhar). He
could have a defence to the claim, (madfa‟ or maqal), or he could raise questions as to
the qualification of the witnesses such as the presence of blood ties between the
plaintiff and the witness, or the existence of enmity between the witness and the
defendant, or some other similar excuse the defendant may wish to raise. The court
shall be bound to give him reasonable time to prepare and present his evidence.39
If, on the other hand, the defendant admits that he has no defence or objection
to the evidence given after he was given the opportunity to defend himself, the court
shall enter judgment against him.
Where the defendant is abroad, or a minor, or mentally retarded, the plaintiff
shall, despite his proof in the normal way, still have to take the oath called yamin al-
qada, testifying that he has not in any way taken advantage of the defendant. In this
way, the oath stands in for the defence of the defendant.

4.4 The Admissibility or Otherwise of the Testimony of Witnesses

The evidence of an adversary over another in a matter of significance where
the opposition has been long-standing is not admissible. Similarly, the evidence of the
person who is suspect of immorality is not admissible.
The evidence of a person who is suspect in his testimony is not admissible.
Only the testimony of persons who are „udul is admissible. (“wa la yuqbalu fish-
shahadati illal „udul”). The „udul are persons who are obedient, those who avoid the
major sins and who usually avoid the minor sins. This condition is relevant at the time
of adducing evidence, not at the time of receiving the information.(Wa innama
yu‟tabaru hadha fi halil ada‟i la hali al-haml).
If one has been punished by way of hadd for zina, and has repented, his
testimony shall be admissible except in the matter of zina. Where one has been
punished for some other hadd offence, his testimony may be accepted after
repentance except for the hadd for which he was punished.
The evidence of a child is (generally) not admissible. The evidence of the kafir
is not admissible whether he is giving testimony for the Muslim or non-Muslim, but
he may give testimony of an event that occurred during his days of disbelief during
the days of his being a Muslim.
Similarly, the evidence of a son for either of his parents is not admissible, even
if it is for one against the other. This is the view of Sahnun, based on the principle that
“a descendant shall not give testimony in favour of his ascendant; and an ascendant
shall not give testimony in favour of his descendant” (“al-far‟u la yashhadu li aslihi;
wal aslu la yashhadu lifar‟ihi”) but, to ibn Nafi,‟ such is permissible.
However, evidence by a descendant for a descendant against his ascendant or
vice-versa, is permissible. It is also lawful for a parent to testify for a son against
another son if there is no sign of favouritism towards the one in whose favour the
evidence is given. If that is established then the evidence shall be inadmissible, just as
if a father were to testify in favour of a child against a grown up son, or to testify for a
well behaved son against a badly behaved son.

39
Ibid.

14
 However, if he testifies for his son against his grandfather or in favour of his
son against that son‟s son, there is no doubt that such is prohibited absolutely.
It is not permissible for a husband to give testimony in favour of his wife, or
she for him, as long as she is under the fold („ismah) of the marriage even if she is
serving a revocable talaq. However, in the case of a talaq ba‟in, she may lawfully
give testimony for him.
It is permissible for a brother to give testimony for his brother if he is „adil in
matters relating to property, also as long as he does not depend on him. By extension,
hurts are also brought under property issues. However, where a family or clannish
sentiment is involved, or his brother stands to benefit in terms of status such as where
the subject matter of the dispute is a woman of high standing that will uplift his status,
then the testimony may be tainted.
The testimony of one who is known for telling lies or flaunting his major sins
is not admissible. One lie shall not disqualify. Only lies that are marratan ba‟da
marrah are taken into consideration. Similarly, the type of lie that will enable
settlement cannot be used to disqualify a witness. Concerning the flaunting of the
major sins, the apparent import is that if one flaunts the minor sins, he shall not be
impeached which is certainly not the case. The use of the term kaba‟ir is in reference
to the lies, therefore, such a witness may be impeached if he is seen committing a
major sin in secret. He may be impeached and this is the position of the
Mudawwanah.
Similarly, it is not permissible for a neighbour to give evidence in a matter in
which he stands to gain, such as where he gives testimony in favour of his neighbor
who is his business partner. But he may give testimony in matters that are not related
to that. Similarly, any person that is in a position that makes his testimony seem to
protect his interest. For example, where one of the „aqilah impeaches the character of
the witnesses to the homicide because successfully impeaching the character of the
witness will aid his escaping the liability of payment of diyah. It is also prohibited for
an executor (wasiy) to give testimony for his ward which is similar to the case of the
neighbour who has an interest. However, according to the opinion in the
Mudawwanah, he may give evidence against him. The general principle to note is that
where testimony in favour of a person is prohibited, testimony against that person is
permitted (Wa kullu man la tajuzu shahadatuhu lahu fa shahadatuhu „alaihi
ja‟izatun).

4.5 Tazkiyah (Compurgation of Witnesses)

It is not permissible for a woman to be declared „adilah, nor to be impeached.
Nothing shall be allowed in tazkiyah except the words: „adlun, ridan which gives the
impression that other forms such as “ashadu” are not permitted, but which is not the
case. It also gives the impression that if only one of the two terms is used then that
shall not be admissible, but it is admissible according to the Mukhtasar, i.e. that the
Muzakki must be a Mubarriz fil „adalah and well known to the qadi. The Muzakki
must also be alert and well acquainted with the work of the witness and well
experienced in the job as a muzakki.
According to the mashhur opinion, the witness must state “ashhadu” by the
writings of al-Tukhaikhi and al-Bassati. However, ibn Marzuq held it not necessary.
There is a difference of opinion over the import of the two terms. „Adlun refers
to acts and ridan to the uprightness, alertness and reliability of the evidence given.
Some others have said that „adlun implies that which is between one and his Lord,
while ridan implies the relations between one and the people. One purgator

15
(muzakki)is not sufficient if the tazkiyah is delivered publicly. However, if it is in
camera, it is permissible. This is the popular (mashhur) opinion.

4.6 Evidence of Minors

The evidence of minors, (sibyan) is admissible in hurts and homicides
according to the mashhur opinion. There are eleven conditions: two are mentioned by
the Sheikh, i.e. 1) before they separate (qabla an yaftariqu); au 2) and before a grown
up person enters their midst (au yadkhula bainahum kabir). The kabir could be a male
or female; slave or free person, Muslim or non-Muslim; 3) they are free; 4) that they
are confirmed to be Muslims; 5) that two or more of them testify; 6) that they give
testimony separately; 7) that they be males; 8)that the witness is not testifying for his
relation or against his enemy; 9) that they are mumayyizin; 10)that the testimony is
about an event that occurred between minors and not between a minor and an adult,
or vice-versa; 11)that the witnesses and the ones against whom evidence is given are
in one group (jama‟ah wahidah).
It should be noted though that the practice in the madhhab is that evidence of
minors is not admissible unless they were within their own midst and that such type
evidence is only admissible in homicides and hurts and not in property cases. It is also
conditional that the witness must be free, mumayyizan 10 years of age or close to that,
male because the evidence of females is not admissible even if there is a male
amongst them, on enmity, it is immaterial that the enmity is between the children
themselves or between their parents. All sorts of enmity will be fatal regardless of
whether they pertain to worldly or religious matters. It is also essential that there
should not be any difference in the testimony given. Nay, they shall concur in terms
of narration. If one witness states that „X‟ killed „Y‟, the other should concur. If the
second witness states that „A‟ killed „Y‟ then the testimonies are inadmissible. On
their being separated, this causes inadmissibility because suspicion is raised as to the
testimony being doctored, but if some „udul testify to the same facts, then that is
admissible after they mix with adults, on the point that no adult came to them, after
the homicide or hurt, if such a person was present during the act or afterwards, and
there is the chance that he coached them as to what to say, that testimony shall lapse
because of the chances of that evidence being doctored. The evidence, however, will
be admissible where that person is an „adl, a reliable witness and where the evidence
is in regard to homicide and not jarh, that the evidence is not in favour or against an
adult, that the witness is not known to tell lies. If the witnesses retract after being
regarded as fulfilling all requirements, their retraction shall not be accepted and the
evidence they had given at first instance shall be considered because “What is to be
considered is their testimony at first instance regardless of whether the retraction was
done before or after judgment” (“al-„ibratu bi ma shahidu bihi awwalan raja‟u qablal
hukmi au ba‟dahu”).
It shall not be permissible to impeach them by others besides them because of
their lack of legal capacity. However, if the trial extends to their attaining the age of
majority, and then they retract, their retraction will be admissible. The benefit of this
type of evidence of minors is to secure the payment of diyah, as the qisas shall not be
executed except upon the testimonies of persons of full legal capacity (mukallafun).

4.7 Evidence of Females

Except for the matter of property and property related cases, and the matter of
al-qadhf, the evidence of females is generally not admissible. However, according to
the commentators of the Risalah, Abil-Hasan, in the Kifayatu al-Talib and al-„Adawi,

16
in the Hashiyah, it may be inferred from the words of the author of the Risalah that, in
homicides and hurts, the evidence of females in their gatherings or marriage
ceremonies is admissible (similar to one of the views of ibn Hajib) even though what
has been popularized, in the Mukhtasar, is the opposite of this, i.e. that their evidence
is not admissible in such cases. This is because the difference between boys and
women is that boys are encouraged to gather, whereas women are not. Secondly, the
evidence of boys is contrary to the normal conclusion of the law („ala khilafi al-qiyas)
and therefore it is not permissible to use it as a basis for analogy (fa la yasihu al-
qiyasu „alaiha).40

5.0 The Practice in Specific Legal Issues that Relate to Civil Matters

5.1 Matters of Sale

If a buyer and seller differ as to the price of the subject-matter, the seller claiming one
dinar and the buyer claiming half a dinar, the procedure is for the seller (ba‟i‟) to take
oath first by way of istihbab. He shall swear in order to refute his adversary‟s claim,
saying:

“wallahi, ma bi‟tuha bi nisfi dinarin, wa laqad bi‟tuha bi dinarin”. After this oath it
would be assumed that he sold the item for a dinar. The buyer shall then swear an oath
refuting the claim of the seller and restating his own claim, thus: “wallahi, lam ashtari
ha bi dinarin, wa laqad ishtaraituha bi nisfi dinarin” by this the buyer shall escape
the claim of the seller. He is also given the option to take the item based upon the
claim of the seller or to take his own oath and free himself liability. In the words of
Abil Hasan: “wa yabra‟u”
If the subject matter is in the possession of both parties, and neither of them
possesses any evidence as to his claim, they shall both take oath and the subject
matter shall be divided between them because they are of the same ranking in terms of
strength of claim and neither of them has a stronger claim over the other. If one party
declines to take oath, he shall lose his claim to the party that took oath.
If they both produce evidence and that of one party is stronger, the ruling shall
be in favour of the party that has stronger evidence, but only after that party takes an
oath that he did not sell the item, and he did not gift it out nor did it leave his
ownership by any means whatsoever.
Where none of the pieces of evidence is stronger than the other, both shall take
oath and the subject matter of the dispute shall be divide equally between them
because none of the parties is stronger.
If the subject matter had been in the possession of the two parties, because of
the words “bi aidihima” that presupposes that if the subject matter had been in the
possession of one of the parties, the ruling would go in favour of the party who has
evidence, after he has taken oath.
If the subject matter had been in the possession of a third party, and one of the
parties has evidence in support of his claim, he shall receive judgment after taking
oath (kana al-qaulu qauluhu ma‟a yaminihi).
If a witness retracts his testimony after judgment has been given, he shall
make good that which has been lost by his testimony if he confesses that he had
committed perjury. This is the opinion of Malik‟s disciples. This should not be

40
al-„Adawi, op. cit. vol. II, p 347-349 for a comprehensive discussion

17
construed, however, to mean that the disciples were unanimous over the
distinguishing between the case of perjury and that of error. Mutarrif, ibnul Qasim
and Asbagh (in the Wadihah) held that he shall be liable absolutely. This is the
position stated in the Mudawwanah and which is preferable to Abul Hasan because
deliberate and mistaken deeds in the amwal are the same. (li‟nna al- khata‟a wal
„amda fi amwalin nasi sawa‟)41

5.2 Issues Relating to Agency (Wakalah)

Where an agent claims that he had returned the subject matter of the dispute or
the sale proceeds, or the item deposited in his possession, or the capital used for the
transaction to the principal, in all of such cases, the judgment is for the agent
entrusted with the deposits (mu‟taman) along with his oath.
If, on the other hand, he had collected the goods by receipt, he shall have no
option but to return them with evidence to his principal. This view has been expressed
by many including Abdul Haqq, al-Lakhmi and ibn Yunus.
If he states for instance that he had delivered the goods to „X‟ and „X‟ denies
that the goods had reached him, the agent who claims that he had delivered the goods
shall produce evidence or else be liable on the condition that the local conventions
demand receipts. Where the local conventions do not require receipts, there shall be
no liability. Similarly, it is incumbent upon the trustee of orphans or his trustee, or the
guardian appointed by the judge to produce evidence of expenditure. He shall also
produce evidence of handing over their property to them after attaining majority if
they are not in his custody and there is a denial that the expenses were not made.
Similarly, that he delivered to them their inheritance after they attained majority. And
if they had been in his custody and a difference arises, he shall be believed regarding
his claim of maintenance that appears plausible (fi ma yushbih) along with his oath
because to establish all of that will be excessive on him. We may conclude that if the
claim is not apparently usual then he shall not be given credence.

5.3 Cases Relating to Sulh

It is permissible to make settlement except in matters that make a prohibited
thing lawful or a lawful thing prohibited as declared in a hadith of the Prophet (SAW)
reported by Abu Dawud: “al-sulhu ja‟izun baina al-Muslimina illa sulhan ahalla
haraman au harrama halalan”
An example of the former is for wine or pork to be offered as settlement over a
house, or for gold to be exchanged for paper money with a deferment and an example
of the latter, is for a piece of clothing to be sold on the condition that it shall not be
worn or sold by the buyer.
It is agreed that sulh can be made in matters of iqrar and in matters of inkar
(according to the popular view), and contrary to the view of ibnul-Jahm who held that
such is unlawful. In transactions, (bai‟) it could take the form of iqrar if, for example,
in a claim for a chattel or animal, one accepts a donation. It could also come in the
form of ijarah such as where one claims clothing or a slave and he accepts, in place of
the slave, a usufruct such as tenancy of a house for a certain period. It may also be in
form of a gift.42 For example, where he has 100 with a debtor and he settles with him
to receive fifty. This is actually referred to as ibra‟.

41
al-„Adawi, op. cit. vol. II, p 350.
42
Ibid, vol. II, p. 353.

18
 According of Abul Hasan, the Sheikh did not mention that which is neither
iqrar nor inkar but this is construed as iqrar according to the popular view.

5.4 Some Issues Relating to Claims to land (Istihqaq).

One who enters a claim to recover his land from a buyer or other who is not a
ghasib, after he had developed the land by building or planting, the claimant shall pay
to the one who developed the land the cost of the development as it stands (qa‟iman)
and collect his land along with the development. If he refuses to do so, the buyer will
give to him or his assigns the value of the land devoid of the development (barahan).
If the buyer refuses (in a text, it is stated if they both reject) then they shall be joint
owners of the land, the claimant by the value of his ownership over the land; the
buyer by the value of his expenses over the land. Therefore, if the value of the land is
10 dinars, for example, and the value of the development is 20 dinars, the division
will be split into three parts (athlathan) in that ratio, the computation being considered
as at the day of judgment, according to the popular view, not the day of development.

5.5 Cases Relating to Trespass to Land and Rape

However, in the case of the trespasser al-ghasib, and the one who assumes
possession through the ghasib with knowledge of its being usurped, he shall be
ordered to remove his structures, seeds and trees planted. If the claimant wants, he
may pay to the ghasib the value of the demolition and the value of the trees as
removed i.e construed as firewood and the building as rubble, because he did not
build with the consent of the owner. This shall be done after evaluating the cost of the
demolition workers. For example, if the value of the rubble is 10 dirhams and the
value of the workers is 4 dirhams he shall only be given six dirhams. Ibn al-Mawwaz
and Ibn Sha‟ban held this view. Ibn Rushd has stated that this procedure is applicable
only where the ghasib and his servants are not capable of undertaking the task.
Beyond that, there is no liability upon the claimant regarding that which has no value
after demolishing.
The ghasib shall return to the victim the ghallah (proceeds) regardless of
whether the usurped item is a house, goat or similar object because of the words of the
Prophet (SAW), “La yahillu malu imri‟in Muslimin illa „an tibi nafsin”(al-Tirmidhiy
and Abu Dawud reported this hadith with a variation).
The one who is not a trespasser (ghasib) shall not be caused to return proceeds
because of the words of the Prophet (SAW) “al-kharaju bid-daman”.
Therefore, in cases involving the offspring of animals and, in the case of a
child of a maid, the child of one other than her husband, but a free person, the
claimant for the maid shall take her child from the hands of the purchaser or other
(such as the one given as a gift). Whoever rapes a maid, his resultant child shall be a
slave and he shall be punished by hadd. By ghasb, it is meant one who abducts and
rapes a maid even if he did not intend to possess her.43

5.6 Disputes between Joint owners of a Premises, Easements and some Cases of
Tortuous Liability
If one is an occupant of the lower building and another is the owner of the
house on top, and the occupant of the lower house fears that his house may collapse,
the obligation to rehabilitate shall be upon him for the reason that the occupant of the

43
Ibid, vol. II, p.358.

19
upper building shall not be able to enjoy proper occupation. Similarly, the owner of
the lower house shall effect repairs over the wooden beams that serve as deck.
Similarly, the maintenance of the rooms are to be carried out by the owner of the
lower house. The owner of the lower house shall be compelled to repair or to sell to
one who will. This is based on the principle La darar wa la dirar, words from an
authentic hadith. Therefore, he shall not do anything that will injure his neighbour.
He goes on to give three examples of this:
(1) Whoever opens a window so as to have his neighbour exposed, by it, if, for
example, males can be discerned from females, it shall be sealed by building it
up after the steps used to ascend the window are demolished. On the other
hand, if the opening cannot be accessed unless extra effort is made the owner
shall not be ordered to seal it;
(2) Or to open a door opposite the neighbour‟s entrance. This could be a door,
window or other opening according to Sahnun.
(3) Digging a pit which is injurious to his neighbour even if it is in his own
territory and the judge shall order him to build a fence using wooden pillars
tied up together.
The apparent (zahir) meaning is that no oath is required but others have stated
that a yamin is required. This is brought about by the difference of opinion as to
whether „urf can stand as one witness (shahid) so that the oath can be based on it or
does it suffice as two witnesses so that no oath is required?
One may not prevent others from making use of water that is in a quantity
greater than his need, such as water that is lawful for all people. This type of water
also may not be sold, gifted or inherited. The owner shall be compelled by court
order to allow others access to the excess water. Now, this rule is limited to lands that
do not have specific owners.
Where there is a specific owner, he may prevent others. If some possessors of
livestock sink a well in a land that is not owned by any particular person, and some
travellers pass by, then the possessors of the livestock have a better right to the well
until they drink to their fill, then the travellers, then the livestock of the possessors of
the well, then the livestock of the travellers, then other people after them. That is they
shall have equal right to the left over.
Therefore, one who has a stream or a well within his land, he may prevent
others from using it unless his neighbour‟s well has collapsed or dried up whilst he
has crop he fears will dry up, he shall not prevent such a neighbour. He shall release
the water for him on 3 conditions:
(1) That such neighbor has crops that are drying up;
(2) That he fears that his crop may dry up (talaf); and
(3) That he commences repair of his well with dispatch and he should not delay
that.
There is a difference of opinion as to whether the neighbour will be bound to
pay for the water (which is the report from Malik); or not (which is the view in the
Mudawannah).44
It is also encouraged to permit a neighbour to place his rafts upon one‟s wall.
However, in the case of the official of the mosque, or his deputy, there is a difference
of opinion over his permitting a neighbour to place the rafts upon the fence of the
mosque. There are two opinions but the preponderant (rajih) one is that of

44
al-„Adawi, op. cit. vol. II, p 358.

20
prohibition. To (Imam) Ahmad, the prohibition is binding, and al-Shafi‟iy (in his
Jadid opinion) and Abu Hanifah are of the same opinion as that which we stated.
Crop or fences that are damaged by livestock in the night shall be made good
by the owners but there shall be no liability if the damage was done during the
daytime, and they had not hobbled the animals, but, if they had, then there shall be no
liability. According to Ibnu „Abdil Barr, “The only way the owners will be liable is if
they left the animals without a shepherd and, if they had been with such a shepherd
and he did not prevent them, then he shall be (liable) just as the one leading a camel
(qa‟id) or rider of an animal (rakib) would, whether or not he had taken them close to
the crops or far off. Some others have held, though, that if they were taken far off
from the crop whatever is damaged is not subject to liability regardless of whether or
not they were accompanied by a shepherd or not.
Whoever finds his belonging that he had sold to a person and he had not
collected the money until its buyer had become bankrupt, he (the seller) shall be
given the choice of either joining the pool of creditors on the money and claim a
portion of his money from that; or if he does not elect for the procedure mentioned
(al-muhasasah) he may take back his sold item for the same rate for which he sold it
to him if it can be identified by its features and it is among non-fungibles or value
based goods (qiyami) things such as an animal or a slave. If it is a fungible (amthal)
item such as food stuff (wheat), he shall only have the option of al-hisas, unless he
can produce evidence that he had placed his wheat into the collection. All that has
been stated relating to the option of the seller is applicable to the case where the
creditors (gurama) have not effected payment of his merchandise to him. If they have
done so, he shall have no claim.
In the event of death, the owner of the owner of the merchandise sold (sahib
al-sil‟ah) who finds his property with the bankrupt (who sold the item and did not
collect payment) who dies he shall have to stand in common with the other creditors
because of the maxim of the Prophet (SAW) “al-Za‟imu gharim”. It appears that he
shall be liable absolutely.

6.0 Reception of Evidence in Capital Cases

Under this heading, the discussion will take the form of running through the
various capital offences, which are chief1y the qisas45 and hudud.46 Capital
punishment in the ta‟zir47 may only apply in restricted cases. This approach is
necessary because there is no uniform procedure for proving the variant, multifarious
offences. We, therefore, need to assess the offences distinctly by explaining the
conditions and methods of proof applicable to each offence.

6.0 Qisas Offences

There are two categories of qisas offences: cases of homicide; and cases of
hurts.
6.1 Cases of Homicide:

45
Literally means to follow in the same way, presupposing retaliation for offences against life and
limb, but which entails the option open to the victim or his heirs to descend to compensation or pardon
because it is a private right.
46
i.e. offences against the state for which there is a prescribed penalty in the texts of the Shari‟ah. It
literally means barrier, and on a wider scale implies preventing the offender from repeating the crime.
47
Discretionary penalties by the court when the offence does not fall under either the qisas or hudud.

21
 There are, generally, three types of homicides:
6.1.1 The qatl al-‘amd is when the offender intends to cause death by using a
deadly weapon (muhaddad) or a blunt, but heavy object (muthqil), or by, otherwise,
burning, drowning, strangulating or poisoning the victim. There is a consensus of
opinion that the qisas becomes due in such cases.48
6.1.2 The Qatl al-Khata’ (Mistaken Homicide) is where the offender did not intend
the strike and also the effect of death, such as where one falls over another, or where a
mother rolls over her child in bed, or where one, aiming at game, misses his mark and
hits a man. In such cases the retaliation (qisas) shall not apply. The penalty to be
given is the compensation and expiation.49
6.1.3 The Qatl Shibh al-‘Amd is where the offender intended the strike on the victim,
but not the effect of death. The popular opinion of the Malikis is that this situation
would fall under the intentional homicide if the act was done in a fit of anger,
aggression or fight. However, if the act was done in the course of lawful correction,
using conventional means of discipline by a parent or teacher then they deem it shibh
al-„amd and the qisas will be put off.50

6.2 Conditions to be Established in a Case of Qatl al-‘Amd - (Intentional

Homicide):
Ibnu Farhun has explained the conditions necessary to be proved in a case of
intentional homicide. For example, he states that (1) the offence must have been done
intentionally ('amdan), not by mistake; (2) it must have been committed wickedly or
transgressively („udwanan);51 (3) furthermore, he states that the victim must not have
been an outlaw (muharib); (4) the offender must be sane;52 (5) the victim must be
equal to the blood of the offender in terms of Islam and freedom; (6) the offender
must not be an ascendant of the victim, as explained earlier on; (7) the victim must
not be a slave if the offender is a free man; (8) the offender must be identifiable. If,
for instance, after being identified the offender disappears into a group of innocent
people and the identity of the offender is thereby lost, the qisas is not applicable on
anyone of the group. They shall be caused to swear 50 oaths to free themselves of
liability. Infact, Sahnun held that there is no obligation, upon them of any sort and
testimony hereby lapses; (9) the complainant's ( i.e. the relation‟s) claim must not be
in conflict with the declaration of the deceased; (10) the circumstantial evidence
(lauth) should be clear otherwise it will not entitle the heirs to the qasamah oaths;
(11) there should not be a strong alibi in favour of the accused; (12) the awliya (heirs)
must not refuse to take oath in the event of a qasamah order as this will cause the
qisas to lapse; (13) if a group is accused and proof was by qasamah, then execution
by way of qisas of one of them, causes the execution to lapse in the case of the other
suspects; and (14) the awliya, or even one of them must not remit the qisas.53

6.3 Proof of Intentional Homicide

There are three means of proof: confession, testimony; and qasamah oaths.

48
Ibnu Juzay, op. cit., p.295.
49
Ibid.
50
Ibid, See also al-Ja‟liy, Siraj al-Salik, Sharh Ashal al-Masalik, al-Halabiy vol.II, p.208. If the parent
or teacher were to slaughter the victim or to stab them in the abdomen, intentional homicide will be
deemed.
51
Ibnu Farhun op. cit., vol.II, p.239.
52
Ibid.
53
For an elaboration of these points see ibid, pp.230-231.

22
6.3.1 Confession (al-Iqrar):
A confession has been defined by Ibnu Farhun to be a statement or its
equivalent that indicates the turning away of the subject matter of the dispute away
from the confesser. It could be by clear words, in writing or by signs such as nods in
the case of the sick.54
According to another source, a confession is a statement that obligates
admissibility, and which is binding on its undertaker only.55 Therefore, the maker
must be legally responsible (Mukallaf), solvent i.e. not under- interdiction (hajr) and a
free agent (Malikun li nafsih) which presupposes that he is adult, responsible (rashid),
not under duress or fear, and not a slave of one who is bankrupt.56
In the matter of homicides and private rights, a confesser may not retract his
confession.57 The Law is quite clear on the fact that a confession is binding on its
maker only if it is made voluntarily. In the Mudawwanah, it is stated that “if…the
corpse is revealed by the accused after threats, I will not execute unless he confesses
distinctly, after that, on a full breast.58
By confession the qisas becomes due unless the awliya (heirs) opt for blood
money or pardon. In the case of blood money the consent of the killer must be
obtained as he will be the one to pay the amount settled upon single-handedly and
without the contributions by the „aqilah (comrades). Where a killer refuses to consent
to payment of blood money, it is for the awliya (heirs) to either revert to their option
of retaliation (qisas) or pardon the offenders totally.59
It is possible for the offender to make a qualified confession such as where he
admits the killing, but justifies it with a defence of mistake, self-defence or
provocation, for example. In this type of case, the majority of the Malikis will insist
that the confesser must prove his assertion. Therefore, where he says he found the
deceased in intimacy with his wife, his excuse will not be sustained unless four
witnesses to the act are presented.60 Similarly, when two men confess to the murder of
the deceased and allege that they had acted together with a third, their testimony will
not be admissible without corroboration because their participation in the act renders
them ineligible witnesses against the third individual. It should be stressed, here, that
their evidence, though, may be a ground for invoking the oath taking procedure of
qasamah, their testimonies amounting to strong circumstantial evidence (lauth).61

6.3.2 Testimony: Proof in this way requires the presence of two Muslim male, free,
adult and honourable witnesses („adlain) who testify to the act that brought about
death, such as the strike, blow, shot, or similar action.62
They must have seen the deceased die instantaneously, or without regaining
consciousness. Where these elements are not established, proof may only be by means
of oath of conjurators (qasamah).63

6.3.3 Oath of Conjurators (al-Qasamah)

54
Ibnu Farhun, op. cit., vol.II, p.39.
55
Al-Tawudiy, op. cit. vol.II, p.358.
56
Ibid.
57
Ibnu Farhun, op. cit. vol.II, p.41.
58
Al-Tawudiy, op. cit. vol.II, p.360.
59
Al-Ja‟liy, op. cit. vol.II, p.208.
60
Ibnu Farhun, op. cit., vol.II, p.133.
61
Malik bin Anas, (n.d). Mudawwanatul Kubra, vol.XVI, p.207.
62
Al-Ja‟liy, op. cit., vol.II, p.208.
63
Ibid, pp.208-209.

23
 Homicide may be proved by way of qasamah where there is no direct
evidence, but strong circumstantial evidence (lauth) exists. Examples of lauth are the
accused being found besides the writhing body of the deceased, smeared with the
latter's blood and holding a blood-stained dagger, or where the deceased makes a
dying declaration against a person or group of persons, or where there is only one
qualified witness that is able to testify to both the strike and the death, or where there
are two witnesses that testify to the attack but not to the death of the victim.64
According to Ibnul Qasim, if a man were to be seen stealing away from a
house and people were to dart into that house only to find a victim slithering in his
own blood, this is a ground for upholding the qasamah.65 Ibnu Farhun reports that
'Iysa bin Dinar was asked by Ibnu Muzayyan concerning his opinion as to which type
of attack will obligate the qasamah and he replied: “All attacks”. He was then asked
about the slap, and he said it was also an attack capable of causing death and he
quoted the verse in Suratul Qasas: “Fawakazahu Musa fa qada „alaih”66 He was
pressed further, “What if there is no sign of violence (or struggle) on the corpse”?
And he replied “Circumstances will tell and the qasamah will apply subject to its
rules”.67 He was asked, again; “What if there was no enmity (dispute or motive)
between the victim and the killer, he said: “He is better informed as to why he did it.”
He was then asked: “What if the suspect is the best behaved of men?” and he
answered that the qasamah will still apply because “a man speaks his utmost truth at
his point of dying and departure from this world.”68
In assessing these situations that may amount to lauth or latkh,69 by some,
there is a solemn respect for the dying declaration if it is positively expressed by the
deceased, there is no uncertainty in it and the deceased believed death was
imminent.70 The so-called man of good character, here, does not enjoy any advantage
because the evidence is profuse and simply cannot be ignored. It appears, also, that
signs of violence are a requirement according to some jurists. This is why „Iysa bin
Dinar was asked this question. However, despite the answer given by him, coupled
with Asbag's opinion,71 a dying declaration testifying to poisoning may also draw the
qasamah. It is related in the „Utbiyyah, as reported from Ibnul Qasim, that there is no
qasamah unless in violent (darbu) cases accompanied by clear evidence or signs
(athar bayyinah) of injury.72
This difference should be interpreted, and Allah knows best, to mean that for
the qasamah to ensue, there must be obvious signs of imminent death and not just of
injury. If there are no obvious signs of death, then the dying declaration actually loses
its force and authority. Furthermore, if the purported lauth is shaky then there can be
no qasamah.73

Procedure for Entering a Claim of Homicide where there is no Clear-cut

64
Ibid, p.209.
65
Ibnu Farhun, vol.II, P.237.
66
Al-Qur‟an, ch.28: 15.
67
Ibnu Farhun, vol.II, p.238.
68
Ibid.
69
It is our humble opinion that the classical writers have used the terms lauth and latkh (soiled or
smeared, i.e. with the blood of the victim) interchangeably.
70
See al-Dasuqi, (n.d) Hashiyatu al-Dasuqi „ala Sharh al-Kabir lil-Dardir, vol.IV, p.237.
71
Ibnu Farhun, cop. Cit., vol.II, p.239.
72
Ibid.
73
See Ibid., p.240. In that case the qasamah could not be applied because the lauth was shaky
(mukhtalifun fihi).

24
Evidence or Presence of Lauth
Where a man claims promptly (muta‟alliqan) that a suspect has the blood of
his brother and that he possesses the locus to stand as his waliy (guardian), he shall
first of all establish that relationship.74
If that is done, the judge shall ask him for evidence. If he says he does have
evidence the judge shall detain the accused pending production of evidence. If the
complainant is still not able to produce witnesses, then the accused who is disposed to
the offence (muttahiman bihi) may be remanded in custody for 15 to 30 days in the
opinion of Ibnu Zaunan and Abdul-Malik bin al-Hasan but if he is not a muttahiman
bihi then remand may only be for two days, or thereabout.75
If the waliy is able to produce strong evidence (sabab qawiy) then the remand
may be extended, depending on the discretion of the judge that will cover the period
of investigation. If there is no evidence that can be obtained then the qasamah shall
not be resorted to.76 We are referring to a case where the suspect is shown to have
been connected, remotely, to the murder but that involvement falls short of lauth or
latkh. If we were to follow the golden principles of the Andalusian jurists, this type of
case necessitates further remand in custody and chains for a long period and the judge
must resort to ijtihad in the affair and, especially, to ask the learned men before such a
suspect may be given the option to take fifty oaths, in the major Friday mosque
(Jami‟) releasing himself from liability.77 After such oaths the suspect may be
released. According to another view narrated by Ibnu Farhun, it is the awliya (heirs)
composed of the waliy and three other men from the paternal relations of the
deceased, that will take fifty oaths, after a long detention of the accused, before the
chief executive, his ministers, high ranking men of government and a large gathering,
to the effect that the accused did kill their fellow intentionally. Here, Ibnu Farhun
mentions that, upon the conclusion of this procedure, the suspect may be released
upon paying some amount of gold.78 In such cases, if the waliy is a minor the suspect
will tarry in custody until he attains majority.

Procedure for Qasamah Oaths:

The oaths are to be taken in the grand mosque after the Friday congregation to
the effect that it was the suspect(s) who caused the death of the deceased. 79 The oaths
must be accompanied by the words “wallahi” or “tallahi” or “billahi.” Some others
have preferred a more detailed formula, thus: Wallahil Ladhi La ilaha illa Huwa,
„Aalimu khaa innatal a„yuni wa ma tukhfis sudur….”*80 But, in reality, all these
words are for added emphasis. What is essential is that the oaths should be definite as
to the accusation of the suspect(s) in a direct way.81

74
Ibid, p.239.
75
Ibid.
76
This view is reported from Mutarrif, Ibnul-Majishun and Asbag. (See Ibnu Farhun, op. cit. Vol.II,
p.239).
77
Ibnu Farhun concluded so after an exhaustive analysis of knotty cases such as the one accused of
throwing a stone that killed a woman who had no waliy and it was not known whether it was
intentional or accidental, and the case of a man who was accused of slaughtering his wife – the couple
were the only occupants of the house, but there was no evidence to pin down the husband to the act,
etc. (See pp.239-244).
78
Ibnu Farhun does not mention the exact amount to be given and thus we presume it should be an
amount fixed by the Court.
79
Ibnu Juzay, op. cit. p.298.
80
Audah, (1968) al-Tashri‟ al-Jina‟iy al-Islamiy, (no publishers) vol.II, p.335.
81
Ibid.

25
 In cases of intentional homicide, the least number of people to undertake the
oaths is two male82 agnates.83 It should be stated that women are disqualified from
taking qasamah oaths in intentional cases of homicide. The waliy may seek the
assistance of his own agnates even if they be not the agnates of the deceased, such as
a case of a deceased woman who has no agnates except her son. If such son has
agnates of his, such as his consanguine brothers, they may assist him in this respect.84
The oath takers are to take oath standing and facing Makkah, Medinah or the Baitul
Maqdis.85

The Effect of Qasamah:

The effect of qasamah is that, in intentional cases of homicide, the qisas
becomes due, and in mistaken cases of homicide, the diyah becomes due.86
According to the view of Ashhab, after the qasamah oaths have been taken the
heirs (awliya) may select one person only (if there are other suspects) and have him
executed.87 According to some other jurists the oaths are to be taken specifically
against the suspect they intend to have executed.88 The other suspects shall then be
jailed for one year and given one hundred lashes.89

Refusal of the Awliya to take Oath:

If the awliya refuse to take oath, then the oaths will be returned to the
suspect(s) who shall swear fifty times (each) that he did not kill the deceased.90
Where only part of the awliya refuse to swear, Ibnu Juzay has explained that there are
two opinions over this:
(a) that those who accept to swear shall proceed to take oath and claim their
portions of the diyah because the qawad (right to retaliate by qisas) falls by
mere refusal;
(b) that the oaths shall be returned to the defendant. If he refuses he shall be
detained until he swears. If a long time lapses he shall be released but only
after undergoing one year's jail term (distinct from his remand period) and one
hundred lashes of the cane.91
Where the defendant(s) refuses to swear, if returned to them, the position
seems to be that it is not a ground to infer a definite admission and the approach of the
jurists has been to imprison him for a long period and to even keep him in chains until
he admits liability or agrees to take oath. It is after that that he may be released. 92 It
appears that this detention depends on the weight of evidence that points to him. It is
my humble opinion that this frustrating situation is the only option for the jurists, i.e.
to release the suspect because even the awliya are not ready to substantiate their
claim, what more of the state? And we cannot say that diyah should be paid because

82
Al-Azhari, S.A. (2007), al-Thamar al-Dani Sharh Risalati Ibni Abi Zaydin al-Qayrawani, Dar al-
Fikr (Beirut), p.374.
83
See Audah, op. cit. vol.II, p.335.
84
Ibid.
85
Al-Azhari, S.A. op. cit., p.375.
86
See Ibnu Juzay, op. cit. p.299.
87
Al-Ja‟iliy, op. cit., vol.II, p.209.
88
In the Tabsirah it is said that the heirs (awliya) will be told to take oath against whosoever you please
and kill him.” (See vol.II, p.233).
89
Ibnu Farhun, op. Cit., vol.II, p.233.
90
Ibnu Juzay, op. cit., p.299.
91
Ibid.
92
Ibnu Farhun, cop. Cit., vol.II, p.245.

26
the qasamah has not been undertaken, and there is no concrete evidence, and the hadd
is to be put off in cases of uncertainty. Allah knows best.

6.4 Evidence in Hurts (al-Jarah):

There are broadly speaking, two types of injuries: (a) Wounds (al-
jarah);93 and (b) severing of a limb or impairing its use. As regards the case of
wounds, if the act was done by mistake, the qisas will not apply and the
specified diyah for injuries (al-arsh) will apply for all injuries that are as grave
as the mudihah (that which exposes the bone). Lesser injuries are subject to
the hukumah (damages assessed by court). If the wound heals without a scar
nothing will be payable if the act was done by mistake.
But if it was done intentionally, the qisas is applicable. There shall be no qisas
in cases of the ja'ifah or the ma'mumah or in cases where there is clear risk to life
such as breaking of the femur. The qisas is not to be carried out unless the wound
heals completely.94 In cases of severing of limbs, the qisas will apply in intentional
cases except where there is risk to life. The diyah or „arsh will apply in cases that are
of mistaken nature.95

6.5 Proof:
The conditions for the application of qisas in the cases of injuries are the same
as those in the matter of homicide as far as proof by confession or testimony are
concerned. The qasamah does not apply to injuries.96
According to Ibnu Farhun, if a man is seriously injured by a mob, then all of
the members of that mob shall be detained because it is not known upon whom the
qisas may fall, and in case the injury leads to death, all of them will be subjected to
the process and procedure of qasamah.97
As regards testimony, injuries are to be proved in cases that fall under
compensation (not qisas) in the same way as financial claims (huquq maliy) are
proved. In the words of the author of the Bahiah:
“(Concerning) the words of the Tuhfah: „Wa
yuthbitul jarahu lil maliy bima yuthbitu mal al-
huquq‟ injuries that are not subject to qisas,
whether done intentionally or by mistake, but
are subjected to fixed monetary form of
compensation specified by the texts or to be
assessed by the court, are to be proved in the
same way as financial claims are to be proved
(i.e. in civil cases) by one male witness and two
female witnesses, or two female witnesses and
either of the two together with the oath (of the

93
It is said that there are eleven types of jarah, ten relate to the head or face and one to the body, thus:
al-Damiyah (causes the skin to bleed); al-Harisah (breaks the skin); al-Simhaq tears off the skin); al-
Badi‟ah, (breaks the flesh); al-Mutalahimah (causes the wound to the flesh in several locations); al-
Multa‟ah (reaches the tissues attached to the bone; al-Mudihah (exposes the bone); al-Hashimah
(breaks the bone); al-Munaqqilah (causes a compound fracture to the bone); and al-Ma‟mumah
(reaches brain tissue). All these relate to head or facial injuries. The ja‟ifah (piercing wound, either
from the front or the rear, applies to the body). See Ibnu Juzay, op. cit., p.300.
94
Ibnu Juzay, op. cit., p.300.
95
Ibid.
96
Ibid.
97
Ibnu Farhun, Op. Cit, vol.II, p.233.

27
 plaintiff).98
Furthermore, according to the Tuhfah, in proof of injuries intentionally
committed and which are subject to qisas, there is no option but to seek for two
honourable, male witnesses („adlain).99 But to the author of the Bahjah (a most
illuminating commentary upon the Tuhfah), this position is not the proper position of
the Law. He relates the opinion of Malik narrated by Ibnul-Qasim, in the
Mudawwanah, to the effect that if a complainant is able to produce one male witness
who is „adl and who testifies to the injury given either intentionally or mistakenly,
then this suffices together with one oath of the complainant, to justify the qisas in
intentional cases, and the diyah in mistaken cases.100
This view is said to be one of the two cases of istihsan (equity) relating to
blood rights, the other being the „arsh fixed for the phalange (unmalah) of a thumb to
be half of the „arsh of a finger by way of istihsan.101 In assessing the two views, it is
difficult to accept that Ibnu Asim, the author of the Tuhfah, was not aware of the
position in the Mudawwanah. Rather, the later Andalusians, who had refined the law,
after hundreds of years of application, may have become wary of allowing qisas
penalties for injuries on the basis of just one man's testimony and oath of the
purported victim. If this was reasonable by conventions during the time of Malik and
his disciples, because of the greater degree of honesty at that time, the situation must
have been perceived to be different at the time of jurists such as Ibnu Asim who died
in the year 829 (A.H.). Secondly, the decision by Malik was by way of istihsan - a
method of ijtihad which is not an absolute principle. We have seen several examples
of how Malik's disciples have taken contrary opinions, to that of Malik, and even
where Malik was forced to review his opinions because of pressing conventions,
circumstances and premises. Allah knows best.
Where the victim of an injury pardons his assailant and later on dies, it is for
his warathah (heirs) to swear qasamah oaths that their deceased died as a result of
that injury sustained, and that oath will entitle them to retaliate by way of qisas in
intentional cases, and collect diyah in mistaken cases.102 This is because the victim
pardoned without believing death was imminent, and therefore it is of no legal
effect.103

7.0 Proof in Hudud Cases

In matters of the hudud we will see a lesser dependence on oaths, because,
whereas in qisas cases private rights are paramount, in hudud cases public rights are
paramount. This is due to the general rule that in hudud cases there is no oath
taking.104 Imam Ibnul Qayyim mentions some exceptions to this rule, such as in cases
of qadhf (false accusation of zina) some Shafi'iys have allowed for a suspect to
demand that the person alleged to have committed zina should swear oath that he did
not actually do it.105 This view is not acceptable, however, to the jumhur because, if
this is allowed, people will be forced to divulge their secrets which are covered by
Allah (SWT), and it will lead them to swear false oaths (yamin al-ghamus) but, most

98
Al-Tasuliy, al-Bahjah, vol.II, p.388.
99
Ibid.
100
Ibid.
101
Ibid.
102
Ibid.
103
Al-Dasuqi, Hashiyah, vol.IV, p.239.
104
Ibnul-Qayyim, op. cit. p.84.
105
Ibid, p.85.

28
importantly, Ibnul Qayyim argues that none of the companions or their followers or
the a‟immah (leading jurists) ever held such a view.106
Despite this position there are, nonetheless, circumstances that will permit the
oath even in cases of defamation, but in this case, the suspect takes oath, if there is
one male witness, to ward off the penalty and, if he refuses, he shall be detained until
he does so. This has been mentioned by Ibnu Juzay. 107
Under this heading, our discussions will take the form of scrutinizing the
various hudud offences, which we may interpret to be capital offences, with the
purpose of assessing the conditions that need to be proved in each distinct hudud
offence, and, then, the means of proving those conditions.
7.1 al-Zina
The Mukhtasar has defined zina to be the act of sexual intercourse of a man,
legally responsible, through the genitals of a human being over whom he has no
sexual rights and in circumstances in which no doubt exists as to its being illegal.108

7.1.1 Conditions

Ibnu Juzay has been able to identify ten conditions that must be proved in the
matter of zina before the hadd may be applied:
(a) The offender must be adult; (b) The offender must be sane. Therefore
the child and the insane may not receive the hadd by ijma‟ of the jurists;
(c) The offender must be a Muslim; (d) He must have committed the
offence voluntarily. There is a difference of opinion over the man
compelled to commit zina. According to the Qadi AbdulWahhab, if the
man's phallus was engorged enough to achieve penetration, then he will be
punished.109 In the view of Imam Abu Hanifah, a man can only be said to
be compelled by state authority, and not by any other person.110 Needless
to say, the woman compelled shall not be given the hadd; (e) the subject of
the copulation must be a human being (adamiy). This includes the front
and rear of a woman or the rear of a male. It removes the act of bestiality
from the scope of zina. It also removes copulation with a jinn from the
scope of zina; (f) the subject, if a girl, must be the like upon whom the act
of copulation is conceivable. On the other hand, a woman who copulates
with a minor boy will not be given the hadd;111 (g) There should be no
uncertainty (doubt) in the case, such as a mistaken belief that the woman
was married to the man, or that she was his slave maid, or where the
marriage is irregular (fasid) because of a difference of opinion over the
lawfulness of such a marriage, such as marriage without a guardian, or
witnesses, if the marriage was celebrated at a later stage and publicized. It
must be noted, though, that where the marriage is fasid by ijma', such as
the case of the joining of two sisters as co-wives, the marriage to a fifth
wife, or marriage to a woman within the prohibited degrees or prohibited
by reason of fosterage, or a marriage within the waiting period (iddah), or
a marriage to a triply divorced wife without complying with the requisites

106
Ibid.
107
Ibnu Juzay, op. cit., p.307.
108
Al-Azhari, A.S. (n.d). Jawahir al-Iklil (Sharh Mukhtasar Khalil). Dar al-Fikr (Kano) Vol.II, p.283.
109
Ibn Juzay, op. cit., p.303.
110
Ibid.
111
Ibid.

29
 imposed, all such cases will draw the hadd unless genuine ignorance (jahl)
can be successfully pleaded by the suspects. Here there are two opinions
over the admissibility of this defence;112 (h) He must know about the
prohibition of the act of zina. There is a difference of opinion between
Ibnul Qasim and Asbag if he pleads ignorance and he happens to fall under
the category of those who may not have known of the prohibition;113 (i)
the woman must not be an outlaw (harbiyyah). In the view of Ibnul-
Majishun, the man who copulates with such a woman will not be given the
hadd, contrary to the view of Ibnul Qasim; (j) the woman must be alive
according to a minority opinion. But the majority view is that one who
copulates with a dead woman will receive the hadd.
The Status of Ihsan
Where the charge amounts to adultery, i.e. where one or both partners is
alleged to be possessed of the status of ihsan, it is necessary to establish this fact, and
there are five conditions for this: (a) sanity; (b) adulthood; (c) freedom; (d) Islam; (e)
having ever consummated a valid marriage. This entails several points. The marriage
must have been a valid marriage; The copulation must have been through the frontal
genitals, not in the unnatural way, or a purported consummation of a fasid marriage,
or copulation during the daytime of a Ramadan fast, or during the period of
menstruation of the wife, or during the seclusion (i'tikaf) of Ramadan, or during the
state of ritual consecration for hajj (ihram). For consummation to be complete there
has to be a disappearance of the glans (hashafah) into the frontal genitals of the wife,
whether or not there was ejaculation. Where one of the spouses admits copulation, but
the other party denies it, none of them are to be deemed muhsan. Ibnul-Qasim,
however, held that the one who admits copulation will be declared muhsan.114

7.1.2 Proof of the Offence of Zina:

Zina may be proved in four ways: Confession, testimony, pregnancy, and by
oath of Li'an.
1. Confession:
The confession must be made by an adult and sane person. One confession is
sufficient,115 contrary to the view of Ahmad who insists it must be made four times,
and the view of Imam Abu Hanifah and his disciplines who say four confessions in
separate Court sessions.116 The statement must be clear and explicit as to the act and
it should not be made under duress.117

Retraction of Confession
The majority of jurists accept retraction of confessions.118 Where one retracts
his confession by explaining himself, such as where he says in a case of zina: “I did
not know that penetration was required when I confessed”, for instance, but where he
does not offer any explanation to support his retraction two views have been reported
from Malik. One states that it shall be admissible, and this is the popular opinion, and

112
Ibid.
113
Ibid.
114
Ibid, p.304.
115
Al-Azhariy, Thamarud Dani, p.390. See also Ibnu Juzay, op. cit. P.304.
116
Ibnu Rushd, (n.d) Bidayatul Mujtahid wa Nihayatul Muqtasid, Dar al-Fikr, vol.II, p.328. See also
Ibnu Juzay, op. cit., p.304.
117
Ibnu Rushd, Bidayah, vol.II, p.329.
118
Ibid.

30
the other states that it will not be admissible.119 Later Malikis have adopted the
popular opinion and allow retraction of confession, in cases of zina, and other matters
relating to offences against the state. It is reported in the Bahjah that Ibnu Rushd had
held that the thief's retraction of confession is admissible whether he provides a
justification or not, just like the zaniy (fornicator or adulterer) the wine drinker and
the robber.120 It appears that this rule, as widespread as it is, is not really absolute. In
the Bahjah it is stated that this rule, concerning the case of theft, will not apply where
stolen property is found on the suspect. The amputation will apply by consensus
(ittifaq) of the jurists.121
It may be deduced from this principle that the suspect is not disposed to
ridicule legal process just because of his advantage as an accused. Where there is
other evidence against him, he may still be subjected to the hadd without his
confession carrying a justification that suffices as a defence.
It is also open to the accused/convict to retract his confession even at the point
of execution according to the popular opinion.122

2. Testimony of Witnesses
In cases of zina, four unimpeachable males are required to give testimony. Al-
„Adawi states: “wa yajibu tafriquhum „indal-ada‟i ba‟da ityanihim jami‟an”. By this,
it is obligatory that the witnesses shall be brought in before the judge together, and
they shall adduce evidence thereafter, separately, one after the other, but in the same
session, as to their witnessing of the act of copulation and, especially, as to the res in
res, and if one of them fails to fully describe the act or occurrence of the res in res,
such as for a witness to say something like: “I saw him in between her thighs, and,
beyond that, I do not know” then all of them shall be punished for slander (qadhf) and
the suspects will escape the hadd.123
Concerning the testimony, the giving of evidence by witnesses must be in
tandem as regards the res in res at the same time. If they had taken turns to view the
fornicators one after another, then their testimony is void. They must specifically tell
the judge that they all saw the act at the same time and if they differ in any way, their
testimony becomes void. Therefore, if they were to differ concerning the scene of the
crime or consent to the act or as to the completion of the act itself, (i.e., they must tell
the judge that they saw the res in res, and this process takes the form of all of the
witnesses being ushered into the court session together) then the judge shall question
them distinctly so that their testimony is given separately.124 In the Tabsiratul
Hukkam it is stated that the judge shall ask the witnesses in a detailed way just as in
the case of sariqah except the witness is a mubarriz (the immaculate witness) or
learned. It is agreed that Ibnul-Qasim, Ashhab, and Abdul-Malik all said: “if the judge
asks the witnesses questions as to the posture (sifah) of the copulation and they
hesitate to explain, then their evidence shall stand rejected and they will be given the
hadd (for qadhf).125 It has also been reported from Ibnul Qasim that the suspect shall
not be given hadd punishment until the details in the witnesses' testimony proves that

119
Ibid.
120
Ibid.
121
Ibnu Juzay, op. cit. p.304.
122
See ibid, see al-Adawy, (1994) Hashiyah ala sharh Abil-Hasan al-Musamma Kifayata-Talib al-
Rabbaniy li Risalati Ibni Abi Zaydin al-Qayrawaniy, Dar al-Fikr, vol.II, p.323.
123
Al-Adawiy, op. cit. p.323.
124
Ibnu Farhun, op. cit. vol.I, p.253
125
Ibid.

31
the act done was zina and they say they explicitly saw the res in res,126 and if the
judge is left in doubt he shall inquire further into issues he hopes will uncover more
information that will clarify the testimony.127
If one or more of the witnesses should retract their evidence, or doubt it, all of
the witnesses shall be punished for qadhf. However, if a witness doubts it after the
hadd penalty, then only such witness will be given the hadd for qadhf.128

3. Manifestation of Pregnancy in an unmarried Woman

If pregnancy manifests in a woman who has no husband, this is sufficient
ground upon which to charge her for the offence of zina. This is because it is common
knowledge that pregnancy comes about by way of sexual intercourse. Another point
against such a woman is that her silence over her state of pregnancy raises a prima
facie case of guilt against her.129 It is established under Maliki legal principles that if a
woman does not report rape immediately it happens then it is not for her to allege rape
only after her pregnancy is uncovered. She must be able to adduce evidence of her
turning up bleeding or screaming for help or similar corroborative evidence to prove
her claim.130 It is important to state, here, that the terms “bleeding”, “screaming” or
“clutching a man” are not to be read literally because, according to al-Tasuliy, the
author of the Bahjah; “This is extremely difficult for a victim of rape. It simply means
reporting the matter promptly, even to her folk.”131 This is the preponderant view
within the Maliki School. Al-Baji, the famous Maliki judge, however, has elected to
admit the plea of rape even without corroboration.132 Furthermore, in the Tabsiratul-
Hukkum, Ibnu Farhun mentions a case of a woman pleading that her pregnancy was a
result of a man ejaculating semen unto her abdominal region, without achieving
penetration, (a vital element of the offence of zina) and that, somehow, the semen
trickled into her birth channel causing the pregnancy. In his words, “This defence will
be admissible from her and the hadd penalty will be avoided because it is a
possibility, and the Prophet (SAW) ordered the hadd to be set aside in cases of
doubt.”133
Claims of Rape against a Man
Where a charge of rape is alleged against a man the court shall take his plea,
and, if he confesses, the court shall proceed to punish the suspect by the hadd for zina
depending upon his "marital" status (ihsan). He shall also be made to pay the dower,
(sadaq) to the victim equivalent to her status for every act of coitus he had with her.134
However, where the man/suspect denies the charge, many issues are brought into
play. How does the court proceed? Firstly, is the suspect to be interrogated or not?
Is he to be caused to take oath, thus freeing himself from liability? Can the woman
be said to have defamed the suspect if she has no concrete proof? What is the
weight of circumstantial evidence surrounding the case? At what time did the
victim report the incident? Was it promptly, or was it only after the manifestation

126
Ibid.
127
Ibid, p.254.
128
Ibn Juzay, op. cit.p.304.
129
Al-Tasuliy, (n.d) al-Bahjah Fi Sharh al-Tuhufah, A.A. Ali Sa‟ud & Uthman al-Tayyib (Kano)
Vol.II, p.357.
130
Abdul-Baqi, (n.d) al-Muwatta li Imamil A‟imati Malik bin Anas (RA), Maktabah Anas bin Malik,
op.647.
131
Al-Tasuliy, Bahjah vol.II, p.357.
132
Ibn Farhun, op. cit., vol.II, p.91.
133
Ibid.
134
Ibn Juzay, op. cit., p.286.

32
 of pregnancy? Is she to be subjected to the hadd for zina because of obvious
circumstances? Since the man escapes the hadd can he be held liable for the
dower? Is the man to be caused to take oath to escape this liability, especially
where the woman is of decent character? The Malikis have discussed these
questions in admirable brilliance and it is necessary, here, to explain in detail how
the procedure runs in this type of matter.
The matter is complicated, technical and fluid because of the prominent role
played by the circumstances of the case. The jurists have, therefore, categorized the
matters into three broad headings, each dependent on whether the woman reported the
matter in good time or not.135

(A)(i) Where the man accused of Rape is of Good Character and the Report is
made after a Delay:
Where the woman‟s claim is made after a delay (which could be long or
short), a presumption of defamation is raised, and she will suffer 80 strokes of the
cane for her false charge. She shall also suffer the hadd for zina because of her
pregnancy unless she retracts her statement. 136
The accused shall not be caused to take oath to relieve him of the liability to
pay dower.137 On the other hand, if the woman is of good reputation the jurists differ.
One opinion states that the man shall be compelled to pay sadaq and will not be given
the chance of taking oath to relive himself of the liability to pay sadaq. However, the
more preponderant view of the Malikis is that if both the woman/victim and the
man/suspect are of good reputation there is no difference of opinion among the jurists
as to the rule that nothing is proved against the man and that the woman shall be given
the hadd for defamation. She shall also be given the hadd for zina if pregnancy ensues
and, if pregnancy does not arise, then the hadd for zina is not due.138
In assessing the two views one is easily inclined to the preponderant opinion of
the Malikis in order to preserve the ultimate purposes of the Law. I think, and Allah
knows best, that the minority opinion stated above will take priority where
circumstantial evidence is overwhelming, such as evidence of the man making away
with the victim until he disappears with her into the night or locking her up in a room
until common sense agrees that the copulation could have taken place. It is essential
that judges be very alert and nimble in this respect. The Malikis rely greatly on
circumstantial evidence and reputation or disposition to crime. I do not think, also,
that just because a man is of good reputation, the court should close its eyes to the
glaring existence of strong circumstantial evidence against him. This could hardly be
the contemplation of great jurists and thinkers such as Ibnu Rushd. After all, in
homicide cases, lauth (strong circumstantial evidence) can result in the execution of
the accused if the process of qasamah is resorted to.139 Furthermore, in cases of theft
the accused, even though of good reputation, can be detained and questioned if he is
found in possession of the stolen items.140

135
See Ibn Juzay, op. cit., pp.285-286. See also Ibn Farhun, op. cit., vol.II, p.91, al-tasuliy, op. cit.
vol.II, p.356.
136
Pregnancy is a type of Shahid (proof) by itself and child birth is a shahid over pregnancy. (See Ibn
Farhun, op. cit. vol.II, p.91.)
137
Ibn Juzay, op. cit., p.286. See also Al-Tasuliy, op. cit., vol.II, p.356.
138
This is the view of Ibnu Rushd as reported by al-Tasuliy in the Bahjah, vol. II, p.365.
139
Al-Ja‟liy, (n.d) (Siraj al-Salik (Sharh Ashal al-Masalik) Mustafa al-Babiy (Misr) vol.II,op.209.
140
Al-Tawudiy, (n.d) Huliy al-Ma‟asim (Sharhu Tuhufah), A.A. Ali Sa‟ad „Uthman al-Tayyib, (Kano)
vol.II, p.360.

33
(A) (ii) Where the Woman Reports the Incident in Good Time
In this case the woman will escape the hadd for zina, but will be given the
hadd for defamation. The arguments about circumstantial evidence mentioned under
item (A)(i) are even more cogent here. Allah knows best.

(B) Where the Man's Reputation is not known

(i) Where the Matter is Reported after a delay
The hadd for zina will not apply to the accused, as the case is not established
against him. The woman will be given the hadd for defamation if pregnancy ensues
she shall be given the hadd for zina unless she retracts her statement.141

(ii) Where the Woman is of Good Reputation

There is a difference of opinion as to whether the hadd for defamation and
zina shall apply to her. This implies that such cases depend heavily on the merits and
circumstances' surrounding each particular case, and the task before the judge is
enormous.
(iii) Where the Woman Reports Promptly, Without Delay
If she is of good character, she shall avoid the hadd for zina and defamation.
The Jurists are unanimous over this rule. Where she is not of good reputation, there is
a difference of opinion among the jurists.142
In this type of case, whenever the woman avoids the hadd, the man will have
to take the oath relieving him of liability to pay dower, and, if he refuses, the woman
shall take oath and claim the dower.143

(C) Where the Man is of Bad Reputation:

The rule here is that the woman shall not be given the hadd whether she
reports promptly or not, as long as she is not pregnant.144 If she is pregnant, there is a
difference of opinion. There is also a difference of opinion over her entitlement to
dower. According to Ibnul-Qasim she is not entitled to dower by her mere allegations
even if the suspect is more devilish than Ibnul-Azraq (a hoodlum of that time).
However, according to Ashhab, it is the view of Malik that she may claim the dower
without being caused to take oath.145 Ibnu Rushd has held that the suspect shall be
subjected to thorough investigation whilst in detention. It is only when nothing is
proved that he will be given the chance to take oath relieving him of liability to pay
dower, and if he declines to do so, the woman will be called upon to take oath and
claim the dower.146

4) al-Li’an
Ibn Rushd has said the jurists have equated the oaths of the husband to the
testimony of four witnesses. If he refuses to take oath after making his allegation, he
shall be punished for qadhf. If he takes the oath and she refuses to take her own oath
to avoid the penalty as stated in the text,147 then, according to the majority of jurists
including Malik, al-Shafi'iy and Ahmad, this is a ground to apply the hadd upon her

141
Al-Tasuliy, Bahjah, vol.II, p.356.
142
Ibid, pp.356-357.
143
Ibid, p.357.
144
Ibid, p.358.
145
Al-Tawadiy, op. cit., vol.II, p.358.
146
Ibid.
147
al-Qur‟an, ch. 24:8.

34
which is the stoning (al-rajm) if she is possessed of ihsan. However, according to
Imam Abu Hanifah, she shall be jailed until she swears. This view of Abu Hanifah is
preferred by Ibnu Rushd and the Imam al-Haramayn, Abul Ma'aliy al-Juwayniy, who
was a Shafi'iy jurist.148 He argues that, in the hudud, execution can only be carried
out on one who has been proved to have committed149 the offence by clear confession
or by direct evidence by means of testimony of witnesses.150 With all humility, the
majority view is still the better view despite what has been said by Ibnu Rushd. It
should be noted that the husband‟s oaths are just as solemn as testimony of witnesses,
if not stronger, because it is an admission on his part, which touches on his manliness
and ego. Secondly, her refusal to take oath is a latent confession, otherwise why
should she refuse to take oath? Therefore, in the case of li‟an both methods of proof
are resorted to and must be, logically speaking, more authoritative than a mere
confession, or mere testimony of witnesses. Allah knows best.

7.2 al-Qadhf (False Accusation of Zina)

7.2.1 Definitional-Qadhf has been defined by Ibnu Juzay to be an accusation of

“unlawful sexual intercourse through the front or the rear, or a refutation of another‟s
paternity, and it could also be by way of indirect means”. 151 This definition follows,
of course, the view of Malik and his disciples. Imam Abu Hanifah and al-Shafi'iy held
that in indirect accusations (ta'rid) only the ta'zir may be applied.152

7.2.2 Proof
Proof of the offence of qadhf is by confession or testimony of two witnesses
who are „adlain. In the latter case it should be known that if evidence is adduced as to
slander of adultery or fornication (zina) or sodomy (liwat) the testimony is not to be
admitted until all the details of the act are stated.153 If there is only one male witness
the qadhif (slanderer) shall be caused to swear and if he refuses he may be detained
even for life until he swears. This is dependent on there being a shahid (witness).154
Ibnu Rushd has mentioned the admissibility of female testimony in matters
relating to qadhf, if accompanied by a male witness and the oath of the complainant.
He also allowed the compelling of the suspect to take oath if there is even a mere
complaint (da‟wah) and even if there is no witness.155
It is said that the conditions to be proved in a case of qadhf are eight. Six apply
to the complainant and two to the suspect. Those that apply to the complainant are (a)
Islam; (b) freedom; (c) Sanity; (d) Adulthood; (e) Chastity from zina; and (f)
Possessing the organs/genitals used in copulation. Those that apply to the suspect are:
adulthood and sanity. Freedom and Islam are irrelevant here.156

7.3 Shurb al-Khamr (Wine Drinking):

7.3.1 Definition
148
Ibnu Rushd, op. cit. vol.II, p.91.
149
Ibnu Juzay, op. cit., p.306.
150
Ibn Rushd, op. cit., vol.II, p.90.
151
Ibnu Juzay, op. cit., p.306.
152
Ibid.
153
Ibnu Farhun, op. cit., vol.I, p.253.
154
Ibn Juzay, op. cit., p.308.
155
Ibid.
156
Ibid, p.306.

35
This offence is brought about by the drinking of an intoxicant regardless of whether it
is called wine or not, and regardless of whether the substance was pressed from
grapes or from some other substance such as dates, raisins, wheat, barley or rice, and
whether of little or great quantity.157

7.3.2 Conditions
Ibnu Juzay has mentioned eight conditions that need to be proved before the
hadd for this offence may be applied. They are: (a) sanity; (b) adulthood; (c) Islam;
(d) the substance must have been taken voluntarily; (e) not out of desperation or
emergency such as choking; (f) the offender must have known that the substance was
an intoxicant, if he thought that it was ordinary juice there will be no hadd; (g) he
must have known that wine is prohibited. There is a difference of opinion where the
offender pleads ignorance;158 (h) his school of thought should be that which prohibits
the nabidh.159

7.3.3 Proof
Proof of wine drinking may be achieved by confession, testimony of two
„adlain to the act of drinking wine, or, according to some jurists including the
Malikis, to the fact of intoxication, vomit of wine, or stench of wine on the breath of
the suspect.160

Procedure for Proving Circumstantial Evidence against the Suspect

The Malikis rely on Umar's decision to apply the hadd on one upon whose
breath is the stench of wine, or who vomits. This opinion actually follows the ruling
in Ma'iz's case where the Prophet (SAW) ordered the breath of Ma'iz to be smelled for
the stench of wine. Ibnu Farhun has explained that the authority for this is that,
according to some jurists, such as al-Lakhmiy, the confession of a drunkard is not
admissible, and that the mere seeing of the intake of wine by a suspect is not as
authoritative as smelling the stench upon his breath. Infact, according to them, the
stench is stronger evidence.161
Therefore, if the judge notices signs of intoxication in speech or walking
displayed by a suspect, he shall order the smelling of his breath to be carried out. He
does this under his general powers to investigate cases brought before him. He has no
option other than to cause the investigation. If there is a dispute among the smellers
the judge shall look for other means of furthermore probing into the matter.162 In this
regard modern means of proving drunkenness may be resorted to since the Shari'ah, in
cases of wine drinking, allows circumstantial evidence and opinion of experts (ahl al-
basar wal nazar).163
Regarding the competence of the witnesses, two points are essential: expertise
and number.

157
Audah, A. op. cit., vol.II, p.495.
158
Ibn Juzay, op. cit., p.308.
159
For a broader discussion see Audah, op. cit., vol.II, p.504.
160
Audah, A. op. cit., vol.II, p.495. Imam Abu Hanifah and al-Shafi‟iy do not allow proof of shurb in
this way. They say that the stench of wine is similar to several other odours. This creates Shuhbah,
and the hadd must be avoided in cases of doubt (Ibnu Rushd, op. cit., Vol.II, p.333).
161
See Ibn Farhun, op. cit. vol.II, p.87-88.
162
According to Asbag‟s report from Ibnul Qasim reported both in the „Utbiyyah and the
Mawwaziyyah, where there is no sign of intoxication, there is to be no procedure of smelling or sniffing
for the stench of wine. (Ibid.)
163
Ibid.

36
Expertise: According to Qadi Abul-Hasan, the two witnesses over the stench must be
persons who have had practical experience of wine drinking in the past, whether that
was during the days of disbelief, or whether as Muslims, but had repented and
mended their ways.164 This view has been criticized by Abul- Waleed, al-Baji. He
says caution (nazar) should be applied to this view. To him, this type of knowledge is
not cogent, and is infested with negative possibilities especially where it is the only
form of evidence against the suspect. Furthermore, to him, it is likely that a witness,
inexperienced in drinking, may be even better gifted in perceiving the stench of wine,
by being exposed to wine drinkers, time, after time, than the so-called experienced
ones.165

Number:
There must be at least two witnesses. It is preferable that they be instructed to
do the sniffing for reasons of transparency.
The witnesses must be definite as to the nature of the stench - i.e. as to whether
it was wine or not. If they agree that it is the stench of wine, then the hadd shall apply.
If they both opine that it is not wine, then the hadd will not apply by ijma‟.166
Where they differ between themselves then, by the opinion of Ibnu Habib, the
hadd will become due if there are up to two witnesses who say that the stench is that
of wine, because the evidence required has been achieved and the dissention of the
others is inconsequential, analogous to the case of two witnesses testifying that they
saw 'x' taking wine and two others testify that the substance was not wine.167
It is possible that the witnesses, themselves, may be confused. In such case,
there shall be further investigation. The suspect shall be tested and if he is a man of
bad character he shall be chastised before he is discharged, and if he is of good
character, he will simply be released. This is because if one is known to mix with
drunkards and rogues suspicion against him as to wine drinking is strong and of
greater likelihood.168
Where two witnesses see the suspect vomiting, this is sufficient to establish the
offence and obligate the hadd penalty, because of the decision of Umar (RA) in a
similar case.169

7.4 al-Sariqah (Theft):

7.4.1 Definition This has been defined by Ibnu Rushd to be the act of taking away of
property, belonging to another, stealthily, and without permission.170 This is also very
similar to the definition in the Huliy al-Ma'asim of al-Tawudiy171 except that he adds
theft of a child to the meaning of theft.

7.4.2 Conditions that must be Proved:

Before the offence of Sariqah can be said to be proved, the following

164
Ibid.
165
Ibid, p.89.
166
Ibid, p.90.
167
Ibid.
168
Ibid.
169
Ibid.
170
Ibnu Rushd, op. cit. vol.II, p.372.
171
Al-Tawudiy, op. cit., vol.II, p.359.

37
conditions must be established: (a) the offender must be sane; (b) adult; (c) not a slave
of the owner of the property; (d) not the father of the owner of the property. Here, al-
Shafi'iy has added the grandfather and Abu Hanifah has added relations and spouses;
(e) not driven by hunger to steal; (f) the property must be inviolable and capable of
being transferred; (g) the thief should not enjoy ownership or constructive ownership
over the property, such as pledged property, or property over which the thief owns a
share; (h) the stolen article must value up to the nisab;172 (i) the stolen article must
have been kept in safe custody (hirz), This means a place customarily known to be a
safe place to preserve that type of article;173 there is a difference of opinion over the
fate of the one who steals from the public treasury or clothes on a drying line. There
is no hadd for a thief who is allowed entry into a house as a guest. In the same way,
there is no hadd for one who steals fruits hanging from trees before they are reaped,
or crop before they are harvested; (j), the theft must be done stealthily. Therefore, acts
such as confiscation (intihab), snatching or mugging (ikhtilas), usurpation (ghasb),
and deceit or fraud (khiyanah) are not to be interpreted as falling under the scope of
the crime of theft.174

7.4.3 Proof of the Crime of Sariqah

There are two means by which the offence of Sariqah may be proved. The
first is by confession and the second by testimony of witnesses.

A. Confession One confession only is required. However, if he retracts his

confession by providing a defensive plea (shubhah) then the hadd will not
apply but the stolen item shall be returned or made good by the thief.
Where the confession was obtained by threats or beatings the amputation
will not be applied but the thief shall make good the stolen article or its
value.175

Procedure in Suspected Cases of Theft:

If the accused is a man of good reputation, he shall not be detained and
subjected to investigation.176 The complainant shall be subjected to lashes for
defamation. However, if the accused is of bad character, he shall be detained and
subjected to investigation. He shall be interrogated and caused to take oath. This is the
position of Mutarrif.177 This rule applies where there is only a mere allegation.
On the other hand, if there is corroborative evidence such as some of the stolen
items found in the possession of the suspect and he claims that he bought them, they
shall be seized from him. If he is a man of good reputation, he shall be detained and
questioned. However, if he is a habitual thief, he shall be detained perpetually until he
dies in prison. In the opinion of Malik, he shall be detained for as long as the state
decides. He shall then be punished and released, but not imprisoned.178
According to Malik, in the Mawwaziyyah, if the accused confesses after being

172
The equivalent of ¼ of a Dinar.
173
For an exhaustive discussion see Ibnu Juzay, op. cit., p.309.
174
See Ibid, p.308. For further reading see al-Dasuqi, op. cit., vol.IV, p.235; also Ibnu Rushd, op. cit.
vol.II, p.337.
175
See Ibnu Juzay, op. cit. p.309. See also Shinqiti, M.A. (n.d) Masalih al-Mursalah (Muahadarah
Amlaha) (unpublished), p.10.
176
Ibid, see also Ibnu Farhun, Tabsirah vol.II, p.119.
177
Al-Tawudiy, op. cit. vol.II, p.360.
178
Ibid.

38
beaten up, or put in detention then this cannot be interpreted to mean duress.179
However, Ibnu Hajar reports that there are several views on this point. In another
report from Malik, the confession is of no effect if it was made after threats. In the
Mudawwanah, it is stated: “If the stolen property or dead body (in a case of homicide)
is revealed by the accused after threats, I will not cut off/execute unless he confesses
distinctly after that on a full breast.”180
Where the suspect confesses voluntarily as a sane adult this suffices as proof.
There is no difference over this.
B. Testimony of Witnesses
If the means of proof is by testimony of witnesses, it is essential that they
coincide in their testimony. Therefore, if they differ as to the article stolen or as to the
date of the offence, there shall be no amputation according to Ibnul-Qasim and his
master, Malik. It is preferred that the witnesses be thoroughly examined as to the
nature of the facts of the case, what was taken, and how it was taken.181
If the suspect confesses but retracts with a justifiable reason such as “"X"
allowed me access to his house and I stole from him and assuming this satisfied the
requirements for the amputation, I confessed” then the court shall accept this
retraction. Where there is no shubhah there is a difference of opinion as to the
admissibility of the retraction but the better opinion as stated in the Bahjah and the
Hilliy al-Ma'asim is that the amputation will apply. This is the position taken in the
Taudih. However, the author of the Tuhfah simply says there are two views over this
and that the preponderant opinion is that the retraction shall be admitted even if it is
not accompanied by a justifiable argument.182
It should be noted, however, that all that has been said above applies to cases
where there is only a mere allegation. But where there are strong circumstantial proofs
against the suspect in addition to the confession, such as his being found in possession
of the stolen articles, and then there is unanimity over the application of the
amputation.183

7.5 Hirabah (Robbery)

7.5.1 Definition
According to Ibnu Juzay, hirabah is the act of taking up arms and preventing
the use of roads or highways for the purpose of plundering the property of people,
regardless of whether this was done within the city or outside of it.184
Under Maliki principles, it appears that this offence is extremely vast and it
covers the case of a thief who, after being confronted by an owner, turns violent
against him.185 It also coves those who harbour robbers or act as guides for them.186

7.5.2 Proof
The offence of hirabah can be proved by confession and also by two
honourable witnesses („adlain).187
179
Ibid.
180
Ibid.
181
Ibid, p.361.
182
Ibid, p.362.
183
Ibid.
184
Ibnu Juzay, op. cit. p.311.
185
See Ibn Farhun,op. cit. vol.II, p.273.
186
Al-Dasuqi, op. cit. vol.IV, p.348.
187
Ibnu Rushd, op. cit., vol.II, p.343.

39
Confession/Repentance
Concerning the matter of confession it should be understood that, if the
Muharib turns himself in before he is apprehended, all public rights against him
which were committed by way of hirabah will lapse and he will be held responsible
for all atrocities that were committed against public rights (but not in the act of
hirabah) such as zina, Shurb al-khamr, and also for private rights violated (even if in
the act of hirabah) as violations against private rights are not extinguished by
repentance.188 Here it should be stated that homicides will be dealt with under the
heading of qisas, and not under the heading of hirabah which means that the robber
can negotiate his way out of the death penalty if he is able to convince the heirs of his
victim(s) to collect compensation or to pardon him.189

Testimony of Witnesses:
The offence of hirabah may also be proved by way of testimony of witnesses
who may even be the victims of the offence. This is the opinion of the majority of
jurists.190 Imam Ahmad does not allow the evidence of victims because, to him, they
are enemies of the offender and cannot be expected to maintain credibility in their
testimony.191
According to the Malikis and Shafi'iys, the evidence of the victims is
admissible only where they testify for other victims and not for themselves or close
relatives.192
In the words of Ibn Farhun:
“The testimony of victims of hirabah is admissible to
prove that they were robbed. This is the opinion of
Malik, Ibn al-Qasim and Ashhab. This is because it is a
hadd offence specified by Allah Most High but it is the
evidence of one for the other that is admissible, not the
testimony of a victim/witness in his own favour or of
his son. However, he may testify that his son was killed
by the offender because the homicide was brought about
by way of hirabah and not by way of qisas as there is
no room for pardon. And if he had so testified against
the offender after he had repented, the evidence will not
be admissible because that will be giving evidence in
respect of his own claim.193
According to the Malikis, only the evidence of unimpeachable witnesses is
admissible. However, where several impeachable but male witnesses such as slaves,
and other non-Muslims testify against a suspect, that would amount to a ground for
punishing the offender by way of exile and beating (ta'deeb).194
It is also trite law under Maliki Jurisprudence that where there is overbearing
evidence against a person known to take to offences such as salabah (i.e. hirabah),

188
Al-„Adawiy, op. cit. vol.II, p.320. See also al-Dasuqi, op. cit. vol.IV, p.350.
189
See al-Dasuqi, op. cit. vol.II, p.350.
190
Ibn Rushd, op. cit. vol.II, p.343, Ibn Juzay, op. cit. p.311.
191
Ibn Qudamah, (1348) al-Mugniy, Mat ba‟ah al-Manar, (Cairo) vol.IX, p.324.
192
Ibn Rushd, op. cit., vol.II, p.343.
193
Ibn Farhun (1958) Tabsiratul Hukkam fi Usul al-Aqdiyah wa Manahajj al Ahkam, Mustafa Babil
Halabiy (Misr) vol.II, p.280.
194
Ibid.

40
hooliganism, such evidence having been received from victims of their offences who
are unimpeachable witnesses and who testify to acts of homicide, or where a lady
"clutches" unto a man and screams rape and there is clear evidence of her being
defiled - all these cases are to be enforced without allowing the offender to enter into
his defence.195
This position has been strongly advanced by Ibn Farhun, in the Tabsirah. He
argues that this is the opinion of eminent Malikis such as Ahmad bn Mutarrif, Ishaq
bin Ibrahim and even Imam Malik himself. He mentions that, on one occasion, Malik
was present at the execution of the penalty of 600 lashes upon the person of one
offender who was "clutched" by a boy who claimed he had defiled him and was
bleeding as a result, and Malik did not express disapproval of the penalty. According
to Ibn al-Qasim, “twenty witnesses are sufficient to me, how can their testimony be
dispelled”?196 Ibn Farhun rounds off this discussion by saying:
“The clear truth about this is that where there is
overwhelming evidence against a suspect relating
to heresy or similar offence, attempting to repel all
that evidence is fruitless because he cannot
impeach each and every (one of the twenty
unimpeachable) witnesses, or adduce contrary
evidence that would counter theirs. The right of
defence has only been advocated in the sense of its
being obligatory in matters relating to financial
matters, and the one who stretches his legal mind
will find the right legal conclusion if Allah
wills.”197
This position is obviously due to the principle of maslahah (public policy).
Where the offender becomes notorious so that scores of honourable people know him
by that reputation of his, then there is no need to waste the court‟s time by allowing
him to enter into his defence. What, for instance, can persons such as Lawrence Anini
("The Law"), Buharin Daji or Turji possibly present as excuse for committing their so
many acts of robbery? In the case of Guri v. Hadijia N.A.198 the accused was
sentenced to death upon a charge of homicide and armed robbery. The Emir‟s Court
of Hadejia refused to allow him to open his defence and also to give evidence on his
own behalf because, according to them, under the principle discussed above, where
there is evidence against the accused, his right to enter a defence is lost and the rule of
I‟dhar lapses. Secondly, a party cannot be a competent witness for himself under
Islamic Law.199
It is clear that the trial court misunderstood this subtle point and ended up
misapplying the law. It appears that this misunderstanding found its way even to the
Federal Supreme Court. The error was in the misreading of the text of the Tabsiratul
Hukkam, and the trial court's reliance on the opinion of assessors who obviously did

195
Ibid, vol.I, p.169. It should be noted that where the standard of the hudud has not been attained, the
prevention of the suspect from entering into his defence must be understood to mean he will be
punished by ta‟zir and not hadd.
196
Ibid, By the way, „cluching (Ta‟leeq) which literally means to cling to or to clutch, does not mean
the physical act of holding on to the accused but, rather, the victim being able to report the matter
promptly so that his or her allegation becomes highly probable. It it this element that the jurists rely
upon in this type of matter.
197
Ibid.
198
(1959) 4 F.S.C. 44.
199
See Ibn Rushd, op. cit., vol.II, p.343.

41
not understand the position well, and holding that the Maliki principle that jettisons
the defence of hoodlums and bandits in the face of overwhelming evidence also
applies to scanty evidence, which was the case in Guri's matter. This is certainly not
the position stated in the Tabsirah, and the Federal Supreme Court failed to find the
true position of the Law and simply assumed the declaration of the trial court to be the
correct position of the Malikis even though they must have known that that
conclusion was absurd. It is my humble opinion that the appellate court should have
read the words of the Tabsirah over again since it was the primary authority cited by
the lower court. It is also likely that the members of the appellate court were not
capable of comprehending the text of the Tabsirah as it is written in the Arabic script,
not intelligible to many common law trained lawyers.

7.6 al-Bagyu (Rebellion)

7.6.1 Definition
The ahl al-Bugat are those who take up arms against a legitimate government basing
their acts upon an erroneous justification such the Khwarij,200 or they could be
persons who separate from the legitimate government by refusing to give allegiance to
the Imam or who refuse to pay tribute.201
The rule concerning their case is that they are to be required by government to
return to the truth, and if they do so they shall be accommodated and there shall be no
penalty. However, if they refuse the Imam may attack them and their blood ceases to
be guaranteed. The implication of this is that they are liable to be killed in the course
of battle, even though they are not confronted to be executed, but rather to be
subdued.202 Therefore, even on the battlefield, they are not to be treated as robbers
(Muharibun) or disbelievers (Mushrikun). Their property shall not be confiscated and
they are not to be executed after being captured unless there is a strong indication that
they will relapse into their rebellion, or the battle is still raging.203 If they flee the
battlefield, they are not to be pursued and they are not to be held liable for previous
acts of destruction to life and property except they rebelled without any justification
(ta'weel).204 Their injured are not to be finished off and the disbelievers are not to be
used against them. They are however subject to imprisonment and lashes if
captured.205

7.7 al-Riddah (Apostasy):

7.7.1 Definition
One who voluntarily abandons Islam after accepting it by a clear expression of
disbelief or by some other expression or action, which indicates disbelief, is said to
commit riddah,206

7.7.2 Procedure for Dealing with one Accused of Riddah:

If someone is alleged to have committed riddah either by words or action, he

200
Ibnu Juzay, op. cit. p.321; Ibnu Farhun, op. cit. vol. II, p.280.
201
Ibid.
202
Ibnu Juzay, op. cit., p.321.
203
Ibid. See also Ibnu Rushd, op. cit., vol.II, p.343.
204
Ibnu Juzay, op. cit., p.321.
205
Ibid.
206
Ibid.

42
is to be summoned to the court and the judge shall first of all ascertain his status as a
Muslim before the allegation.207 The evidence taken against him must be given by two
„adlain, who must give details of the expression or action that is alleged to indicate
apostasy.208 This is because there are several things believed by layman to amount to
apostasy which are not so in legal terms. Besides this, the accused is put into
jeopardy as to his life, his property and his marriage. Therefore, the mere testimony
of witnesses that “I testify that „X‟ committed riddah” is not admissible. The
witnesses must particularly state the purported expression or action that amounts to
riddah.209
If this is established, the accused shall be detained and shall not be deprived of
food or drink, and he shall not be molested or beaten. He is to be given three
consecutive days respite, but Ibnul-Qasim says three times even if compressed in one
day,210 within which he shall be encouraged to return back to the fold of Islam each
day for the three day period.211 If he does not return up till the nightfall of the third
day he shall be executed.212
The female convict, if married, shall be given respite up till her next menstrual
cycle in order to eliminate the chances of pregnancy. If she is found to be pregnant,
her execution will be stayed until she delivers the child and makes arrangement for
the care of the child.213
The property of the murtadd is to be kept in the Bait'al-Mal (public treasury)
as his relations are not entitled to it because of difference in religion. If a murtadd
injures or kills a Muslim, it is not permissible for the compensation due to be taken
out of the offender's property since seized by the state. In fact the state interdicts the
murtadd from the moment the offence is established so that he has no rights of
disposition from that time except that he shall be fed out of it in reasonable terms but
his wife and children are not to be fed out of his-wealth during the term of respite
(zamanu istitabatihi).214

7.7.3 Effect of Repentance of the Murtadd:

Where the Murtadd repents before the expiry of the term of respite, his
property will be restored to him and his interdiction shall be lifted, even though it has
been reported from Ibnu Sha‟ban that he loses his property to the Baitul-Mal by the
mere act of riddah regardless of his repentance during the period of respite.215

7.7.4 Other Dimensions of the Offence of Riddah

In some cases, because of the gravity of the apostasy, the jurists have differed
over the convict's entitlement to the concessionary respite that is obligatory in the case
of the ordinary case of riddah.
If it is proved that the convict had been secretly practicing disbelief, and
pretending to be a Muslim in the open, he is pronounced a zindiq and, according to the
view of the Malikis, he is to be executed without being given any respite and his

207
Abdus-Sami‟s S. (n.d). Jawahir al-Iklil (Sharh Mukhtasar al Khalil) Dar al-Fikr, vol.II, p.277.
208
Ibid, p.278.
209
Ibid.
210
Ibid, See also al-„Adawiy, op. cit., vol.II, p.315.
211
Al-Adawiy,op. cit., vol.II, p.315.
212
Abdul-Sami‟ op. cit., vol.II, p.278.
213
Al-Jaziri, (n.d) al-Fiqh „ala Madhahib al-Arba‟ah, vol.V, p.425.
214
Abdus Sami S. op. cit. vol.II, p.279.
215
Ibid.

43
repentance is of no effect unless he turns himself in before he is apprehended.216
Imams Abu Hanifah and al-Shafi'iy, however, allow the repentance of the zindiq.217
Similarly, the sorcerer (sahir) shall be killed as a disbeliever. But there is a
difference of opinion over acceptance of his repentance. Al-Qarafi has said this matter
is extremely complicated.
The one who blasphemes Allah (SWT) or our beloved Prophet (SAW) or any
of the Prophets or Angels (AS) shall be executed if he is a Muslim by ijma‟ of the
jurists. There is a difference of opinion, however, over acceptance of his repentance.
The preponderant opinion of the Malikis is that he shall be killed according to hadd
and therefore repentance is of no effect.218 The minority opinion of the Malikis is in
line with the view shared by Imam Abu Hanifah and al-Shafi'iy that the repentance
may be accepted.219

7.7.5 An Assessment of the Matter of Proof in Cases of Heresy and Espionage

Zindiqah)
According to lbnu Juzay, proof of matters under this chapter depends on the
signification of expressions or acts done, and the circumstances surrounding the case.
Some acts may require the death penalty, whilst others may only require the adab
(chastisement by way of ta'zir). Some acts may not even draw any penalty at all.
Every case is to be decided upon its own merit by means of ijthad (exhaustive legal
reasoning).220
Following this premise, we may go on to say that, in cases of heretical
behaviour, which may encompass the capital offences of bagyu, riddah and hirabah,
the matter of strict court process cannot be sustained in all cases. This is because at
times the courtroom is the battlefield from where there is no room for the niceties of
the judicial process. If rebels or robbers attack government forces or individuals
what are the victims of the attack expected to do? The most they can do is to warn the
aggressors to retreat if this is feasible, otherwise this requirement is to be jettisoned.221
It seems that in homicides, as elaborated earlier, where there is strong
circumstantial evidence against a suspect, but no clear proof, the court must resort to
exhaustive thinking by looking into the circumstances of the case and making profuse
investigation. In cases of slippery bandits and men of the underworld the court will
stretch itself, in arriving at an answer to the legal problem.

8.0 Miscellaneous

8.1 al-I'dhar (defence)

After evidence is taken against the accused, he shall be given all opportunity
to impeach that evidence and the court shall give him reasonable time within which to
prepare his defence. This is referred to as i'dhar and it carries an import of giving the
accused all available allowance to defend himself. Ibnu Sahl defines it to be al-
Mubalagatu fil „Udhr', and in the Ma'in al-Hukkam it is stated that “it does not
behove of any judge to pass judgement against anyone unless he gives him the

216
Ibnu Juzay, op. cit., p.313.
217
Ibid.
218
Ibid, p.314.
219
Ibid.
220
Ibid.
221
Al-Azhari, Jawahir, vol.II, p.294.

44
opportunity to defend himself in the presence front of one or two persons.222
In fact, it is a requirement that the judge must ask the accused: “Do you have
anything left to adduce as defence?”223 It is to be done, according to the general
opinion of the Malikis, before judgment is pronounced as Ibnu Farhun states that the
judge shall tell the accused: "You may impeach or else I will go ahead to pass
judgment against you." This matter seems to be an extremely flexible point over
which the jurists have differed. What is quite clear, though, is that the accused shall be
given opportunity to plead his reply to the charge against him. When evidence is
given against him, he shall be allowed to impeach the testimony of witnesses against
him and to provide excuses or defences to the allegations, and to establish those
defences; and it appears that the parties shall be given opportunity to make a final
address about their case before the judge. This is because, in the Mudawwanah, it is
stated that the judge shall ask both parties "abaqiyat lakuma hujjah?" and the judge
shall go on to pronounce judgment.
There is a difference of opinion over what type of witness shall be impeached.
According to some, such as Ibnul Majishun and Ibnu Shas, certain witnesses such as
the Mubarriz al-'adalah (the unimpeachable witness i.e. one whose honour and
honesty is unquestionable) shall only be subjected to impeachment as to enmity or
blood ties. However, according to Sahnun the Mubarriz al-'adalah may be impeached
generally,224 and this seems to be the better opinion. Allah knows best.
According to Ibnul-Qasim, the judge is only bound to offer the i'dhar to
persons who are unaware of this advantage such as women and feeble-minded
people.225 According to Ibnu Farhun, the right of i'dhar exists in all cases where
evidence is adduced against an accused or defendant in cases of civil transactions,
(mu'amalat) marriage, trespass and criminal trespass except where the accused is a
habitual hooligan or heretic. He mentions the case of one Abul-Kyar, a heretic who
had 18 witnesses give evidence against him of abandoning the faith. The judge was
Mundhir bin Sa'ad, the Qadi al-Jama'ah, and after consultation with scholars, some
proposed that the accused be given the opportunity to enter into his defence.
However, Ibrahim al-Tajibiy and the Sahibussalat, Ahmad bin Mutarrif, held that he
be put to death without being allowed to open his defense because of the
overwhelming evidence against him. Abu Ibrahim was asked about the propriety of
this decision and he replied that there is a principle of the Malikis that allows for the
jettisoning of the i'dhar (right of defence) in the face of overflowing evidence in
wrongs, robbery cases and cases involving men of the underworld. He also cited the
cases of an accused who was "clutched" by a man whom he had bloodily battered, and
that of a female victim of rape that "clutches" her assailant in an isolated place and
she is found defiled; and the case witnessed by Imam Malik, himself, where a man
was being beaten because of a charge of sexual abuse against him of a boy who had
"clutched" him and was bleeding as a result. The lashes amounted to 600 strokes but
Malik did not object to this.226
Ibnu Farhun is of the opinion that the matter of i'dhar is actually obligatory by
way of istihsan and not text. To him, i'dhar is not obligatory in all cases. He goes on
to mention certain other instances where the i'dhar is uncalled for.
For example, he mentions the testimony of court witnesses who are invited to

222
Ibid, vol.II, p.166.
223
Ibid.
224
Ibid.
225
Ibid.
226
Ibid, p.169.

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attest to a deposition made in court, and where the court invites experts to give their
opinion or assessment of a subject matter of dispute. There will be no i'dhar
concerning their statements. This, however, is one opinion, i.e. that of al-Tajibiy and
Ibnul-Atar who claims that this is the established practice of judges. However,
according to Ibnul-Fakhkhar, the i'dhar cannot be dispensed with because the i'dhar
may reveal the dishonesty of the witness or some form of enmity against the accused.
Ibnu Sahl follows the opinion of Ibnu1 Fakhkhar and says this is the better view.227
Ibn Farhun concludes that i'dhar is obligatory in cases of civil nature such as
property matters, but in cases of heresy, and hardened criminals the procedure can be
jettisoned if there is overwhelming evidence against the suspect.
In our humble opinion, there is a sense in this type of reasoning. Usually
pinning down concrete evidence against hardened criminals is a huge task. To allow
them to get off on mere technicality will be to unleash them back on society and this
will certainly be a greater harm. Such persons should not be allowed to go scot-free
and if the charge cannot be sustained against them, then a ta'zir penalty,
commensurate to their act proved, should be meted out. I suppose that this is why the
suspect in the case Malik attended was not given the hadd for sodomy (stoning to
death) but was given 600 lashes as a strong deterring ta'zir penalty. Allah knows best.

8.2 Al-Ta’jeel and al-Talawwum (Interim and Final Adjournments)

After the accused has been permitted to open his defence, the court shall grant
him reasonable and sufficient time by way of adjournment to produce his evidence. It
is important to note that the time for adjournment is reserved for the discretion of the
court. It is true that some jurists have suggested time limits for various matters but this
is policy based upon conventions, times and circumstances. For example, in cases of
real property (usul) and inheritance, the first adjournment should be 15 days, the
second; 8 days, the third, 4 days and the final adjournment of three days. This final
adjournment is called al- talawwum. This set of adjournments adds up to 30 days and
this is the opinion of Ibnul Atar and others. Ibnul Hindi has suggested 8 days, then
6 days, then 4 days, then 4 days again, then the final talawwum of 8 days. Others such
as Abul-Mutarrif, and Ahmad bin Bashir (the last of the great judges of Cordova)
have suggested 10 days, then 10 days, then another 10 days as the final adjournment
(talawwum).
Ibnu Farhun has stressed that where there is a strong reason, the adjournment
could be extended to two or three months.228

8.3 Al-Ta’jeez
Where the court grants all adjournments (ajal) to the suspect and gives its final
adjournment (talawwum) without the defendant or accused being able to produce
satisfactory defences, the court shall declare him defeated in his argument by way of
ta‟jeez and proceed to pronounce judgment.
It is also possible to declare the ta'jeez even before the final adjournment of
the court is convinced that the suspect is simply procrastinating, and has a hopeless
case.229

227
Ibid, pp.177-178.
228
Ibid, pp.171-173.
229
Ibid, p.171.

46
It is not permissible for the judge to pass judgment before the facts of the case are
clear to him. It is also not permissible for the judge to pass judgment based upon his
own experience or knowledge.230

8.4 Contending Pieces of Evidence

Where there are contending pieces of evidence, the judge shall give preponderance
to that which is stronger or more authoritative even if it be from a lesser number of
witnesses or sources. This is the stronger opinion within the Maliki School. The
weaker opinion says that the judge shall give preponderance only to evidence that is
from a higher number of witnesses or sources.231 It is also said that, where the judge is
not a mujtahid, he may only apply the preponderant opinion within the madhhab.232

8.5 Complicated Cases

Where the facts are complicated either because of the equality in the strength of
competing evidence, or counter claims of the parties, the judge shall make
consultation with men of learning and if, after consultation, the matter remains
obscure, he may make recourse to settlement.233
It is possible, also, for the judge, in cases where there is equality in the strength of
the competing evidence, to partition the subject matter of dispute between the parties,
after both of them take oath. This will occur where, for instance, the parties are both
in equal possession of the subject matter even though this is not a necessary
condition.234

8.6 Cases between Relations

Where the matter is between relations, the judge may encourage the parties to make
settlement, and this is regardless of whether there is complexity in the facts or not.
According to Malik, though, it is better for settlement to be suggested from the onset
and it should not be imposed on anyone.235

9.0 Conclusion
The etiquettes required of the judge have been discussed in terms of the
judge‟s conduct on and off the bench. This discussion has also encompassed the
qualifications and disqualifications of the judge. We have also seen the practical role
expected of the court in the practice and procedure relating to the taking of evidence
and the inter-play between the requirements of witnesses and oath-taking. This
discussion is geared towards appraising the methods and approaches required of the
court in a plethora of legal issues firstly relating to civil matters and subsequently in
criminal matters.
We have closed the paper with a discussion on the more general methods of handling
the practice and procedure of cases before the court.
9.1 Observations

230
al- Fasiy, Op. cit Vol.I, p. 26.
231
Ibn Juzay, Op. cit. p. 260.
232
Ibn Farhun, op. cit. Vol. I, p. 64.
233
Al-Fasiy, Op. cit. Vol. I, p. 26.
234
Ibn Juzay, Op. cit. p. 261.
235
Ibid.

47
 There are several observations concerning matters that, in the opinion of this
writer, either hinder the proper application of judicial ethics, in present day Nigeria, or
are ignored wholly or in part by the stakeholders.

9.1.1 There is difficulty in operating the Islamic law generally. Perhaps the main
reason behind this is the legal framework of the country. Since the coming of the
British, several statutes have been put in to place that hamper the smooth running of
the Shari‟ah legal system.236 In 1959 it was argued on the floor of the parliament of
Northern Nigeria, that “Some of the features of the legal and judicial system of the
region have provoked criticism not only in Nigeria but in other parts of the
world….”237 A necessary effect of this is that the spirit of local Nigerian legislation is
kept hostile towards the Islamic judicial system. For example, evidence has been
placed under the Exclusive Legislative List. This makes it virtually impossible for
states to pass legislation concerning matters of evidence. Courts, in several instances,
are bound by the Evidence Act which is based upon English law. The 1999
Constitution follows the typical style of the colonialists in insisting that all offences
and penalties must be specified in a written law passed by the National Assembly, or a
State House of Assembly.238

9.1.2 The Islamic judicial system, unlike the Romano – Germanic, does not make
procedure significantly diverse in terms of civil and criminal matters. True,
differences exist but they are not as glaring as in the western system. The differences
that exist between criminal and other matters also exist within the civil law
(mu‟amalat). Therefore, there are distinctions that are applicable to various branches
of the law such as property (amwal), matrimonial rights and abuses (furuj), divorce,
(talaq) and homicide (qatl). It should be stressed, here, that there is no uniform
procedure for all the criminal offences. Each has its peculiarities and distinctions. For
example, four male witnesses are required to prove a charge of zina while, for many
of the other hudud and qisas offences, the requirement is two witnesses. In cases of
defamation (qadhf), the standard may be lowered in certain cases. The standards of
proof, however, are not lowered in cases involving theft (sariqah) and adultery or
fornication (zina). There is a special procedure of conjuration (qasamah) in
homicides. Therefore, to hold that there is a criminal procedure distinct from a civil
procedure is, to say the least, misleading.

9.1.3 The so-called Criminal procedure of the Criminal Procedure Code of 1960 is
not significantly different from that of the Islamic system we find in the classical
works of the schools. The significant areas of difference are in the matter of
qualifications of witnesses, procrastination and cavil that have almost paralyzed
dispensation of justice in Nigeria, and the long abstinence from the practice of Islamic
law so that concepts and procedure that should bear the same titles may be misread, or
misconstrued to represent a totally different meaning, giving rise to inevitable
misgivings and, ultimately, non-application. A significant example in this regard is
the term “i‟dhar” which many present day judges in Shari‟a Courts believe is

236
Such as the Native Courts Law, 1956, the Area Courts Law of 1963 and the High Courts Law, 1963
of Northern Nigeria.
237
See Chukkol, K.S. (n.d). The Law of Crimes in Nigeria, ABU Press (Zaria), p. 1.
238
See Section 36 (12) of the 1999 constitution. See also Section 24 (3) of the Native Courts Law,
1956, and now, Section 20 (2) of the Area Courts Edict.

48
different from the procedure inviting the accused or defendant to enter into a defence.
To this writer, the two are one and the same thing. It is only that under Islamic law,
one does not give testimony in his own regard. Testimony must be extraneous. Even
so, the law does attach weight to certain assertions or claims that carry a semblance of
probability and likelihood. Details of this have been discussed within this paper.

9.1.4. The Code of Conduct for public officers in Nigeria is very similar to that of
the Islamic law. More important to judicial officers is the Code of Conduct for
Judicial Officers of the Federal Republic of Nigeria, a handbook of the National
Judicial Institute. It applies to all judicial officers in Nigeria and it spells out the ethics
that sequestrate judges and limit their conduct especially in their official and public
appearances. It contains several rules that are, generally stated, in consonance with
Islamic principles. To sum up, it stands out clearly that the Code of Conduct required
of judges happens to be in line with the tahsiniyyah principles of the Shari‟ah, which
is a broad category of interests the law seeks to protect, and which covers the
encouraging of doing all that decent people respect, and discourages the doing of all
that decent people abhor. Judges are supposed to be the cream of society and to set the
best examples.239

9.1.5 There has been, over the years, a regression in the standard of scholarship and
judicial skill of judges. I think that the judge is required to be knowledgeable, not only
in matters of the law, but also in many other worldly fields, because, even in the law
itself, with the exception of certain general core and fundamental principles
(kulliyyat), many other principles tend to be in a state of constant evolution, being
subject to evaluation and re-evaluation depending upon the tides of time and
circumstances.240

10.0 Suggestions

10.1 There is the need to review the current legal/judicial set up of the country.
Several statutes need to be brought in line with Islamic tenets. The idea may appear to
be cumbersome, and a departure from the old British-cum-American grundnorms may
be unfathomable to some, but, right from Hellenistic times, Epicureans had held that
“All social life is based upon self-interest, and we become members of a group for our
own convenience…. What is good is what members decide at that time to be good,
and when they change their minds the law must change too….”.241 The process to be
undertaken is for legislation to be made reforming the laws in force at both state and
federal levels. To be specific, the 1999 Constitution, the Evidence Act and other
similar legislations can be reviewed to permit the free application of the Islamic Law
of Evidence and other areas of the law.

10.2 The Islamic law should be given a higher status within the Court of Appeal
and Supreme Court. More seats should be given to judges trained in Islamic law so

239
See, generally, Rules 1 to 3. For a good discussion, see Tobi, N. (2004), Code of Conduct and
Professional Ethics for Judicial Officers in Nigeria, Judicial Excellence, Essays in Honour of
Honourable Justice Anthony I. Iguh, Snaap Press (Enugu), pp 39-50.
240
For a good discussion, please refer to al-Qardawiy, Y. (1397H) Shari‟atul Islam, Khuluduha wa
Salahuha lit Tatbiqi fi Kulli Zamanin wa Makanin, al Maktabah al –Islamiy, p. 25.
241
Barker, J. (1971), Pears Cyclopaedia, Pelham Books Ltd., P. J. 25.

49
that the law is developed and preserved. Right now there is risk that the Islamic law
could wither because of neglect.

10.3. There should be a policy of special training for Shari‟ah court judges whereby
they will receive lessons in various cognate fields of study. Knotty questions that
require research and thinking should be subjected to thorough debates at conferences
and symposia. Findings should be published and made available to various courts
around the country.

10.4.. There should be an intensive and specialized effort to translate more of the
classical works in law and judicial ethics into local languages. This would keep the
judge abreast with the true spirit of the law thereby ensuring a better application of the
substantive law and its procedure.

50