Shahadah

Week Week 7

Date @November 21, 2023

retraction of testimony
Whether it is accpeted to be retarcated or not.

Why retract?

Intentionally telling lies to the court.

Mistake in giving shahadah

Ulama: if the shahdah is true- haram to be retracted.

When?

Before the judgement is passed

Court cannot rely on retrcated shahadah

Syahid will be reprimanded (art 1728)

sentence already passed

1. Before execution

a. If it is a hudud or qisas: sentence cannot be enforce.

b. Retraction=syubhah.

c. No punishment.

d. Zina: such retraction, qazaf shall be sentenced to the syahid.

e. Mal cases: sentence still enforceable.

f. Why? The right of the person still at stake. Standadr of proof is lower.

g. Syahid must compensate (to the person against whom the evidence
given)

h. Said al musayyab- sentence has no effect. Sentence cannot stand

without evidence.

Shahadah 1
 2. After execution

a. Judgement stands.

b. Tak kira hudud or non hudud-

c. Effect: no effect

Responsibility of witness who retracts his testimony

qisas

Admit that he did that intentionally so the person will be killed.

Hambali shafii- qisas or same punishment applicable to the witness.

Hanafi: qisas cannot be imposed. Not the direct imposition of

punishment. (Analogy hambali is not that correct)

The witness would be ordered to pay diyyah.

I do not believe your charges against this man, and I

order that you pay blood money of causing the
amputation of the other person’s hand. If I knew that
you have done this deliberately, I would order your
hands to be cut off

mal cases:

Maliki hambali shafii: the witness is liable to pay damages.

tazkiyah al syuhud.
Examination of witness.

to examine the idealness of the syahid.

To determine boleh bagi evidence ke tak.

A form of investigation. Whether the syahid is adil or not.

Kalau other conditions is fulfilled- then the syahid can give evidence.

Shahadah 2
 When the witness gives testimony does it bind the judge?

1. Judge should give judgement based on the testimony.

2. Regards testimony as no more than a means of investigating

Purpose of examination

to make sure that the witnesses (syahid) is a trustworthy / adil person

to determine the authenticity of the testimony given

to ensure that the evidences procured are true

Provisions

provisions.m
S119 of SCE.

Determining the witness is adil.

Witness have give evidence, but the judge has reason to believe that the
witness is not adil -

Judge can order the witness to be examine.

Discretionary power of the judge.

Procedures

conducted after the witnesses had given their evidences before the court

after hearing the evidence given by particular witness

the judge will then ask the officer of the court to record the following:
�
particulars of the witnesses

Muzakki - the examiner - the person examine the witness

s120 FT SCE

Appointed by judge

Shahadah 3
 (Specific criteria)

a pious person

zahid & not influenced by wealth /wordly gain

possesses an experience relating to human behaviour

easily adaptable to the society in which he will conduct the investigation

have knowledge in fiqh by which he is able to know/determine when the

witness can be accepted/rejected.
Secret examination

s121, s122

conducted outside court without the knowledge of the parties involved in the
investigation

No. of Muzakki
• Abu Hanifah, Abu Yusuf & Malik - only 1
• Shafii, Imam Muhammad - 2 examiners
• Ahmad al-Shaybani - no. of muzakki follows the no. of witnesses

Open examintaion

in open court

Although the person has been found adil by the secret examiner, the court may
order for open examintaion too.

S123 SCE

OTHER RELATED PROVISIONS

• Sec 125 : When witnesses need not be examined - different case but within 6
months - takyah examine.
• Sec 126 : Denial over a witness
• Sec 127 : When examiners are of different views
• Sec 128 : Dead / Missing witness
• Sec 129 : Witness is required to take the oath

Circumstances require - or the examination cannot be carried out - court may

order for the witness to take an oath.

Shahadah 4
 Syahadah ala syahadah.
SAS is an evidence given by a witness stating that someone else has attested
on a material fact/right which is the cause of the present action.

2 elements

Original witness

Substitute witness - requested by original witness to testify in the court on his

behalf. Due to certain reason.

Istihsan - hajah.

Art 1688 of the Mejelle

It is necessary that the witness should really know what he is testifying

BUT with respect to property matters, or to the fact of a person being dead, the
testimony of a person saying that he has heard from a trustworthy person – his
testimony is accepted.

Types
request by the original witness to give evidence on his behalf.

Sub witness gives shahadah based on what he heard from the original witness.
(No element of request)

Application
in mal cases. (Unanimous- accepted.)

hudud and qisas

Ahmad and hanifah- not admissible.

Why? Sbb perlu evidence to the level of yaqin. Encouragement to conceal

aib. No clear text form quran to accept syahadah ala syahadah.

Malik & abu thaur: admissible in all cases.

Why? these cases can be established by the shahadah of

original shahid, �it can be established by substitute
testimony as well , (ii) analogy of SAS with the words of interpreter
which can be accepted (agreed by all jurists)(qias)

Shahadah 5
 Syafii: differentiates between right of men and right of Allah

Man: accepted.

Right of Allah:

1. Cannot be used as ground of proof.

2. Can be used as means of proof except in case invovlving a punishment

of stoning - zina - bcs principle is that the witness is required to
participate for hte stoning.

Condition
Original witness must have a valid reason/excuse for not giving the
shahadah personally eg sick/ distance .- tgk distance - kalau boleh musafir
etc.

Both witnesses (original + substitute) must fulfil the condition of giving

testimony (‫داء‬Q‫ )شروط ا‬and ‫ تزكيه‬may be carried out if the credibility of the
witness in unknown.

If the ori witness tak fulfil- takleh nak request the sub to give evidence for
him.

Substitute witness should specify the name of the original witness.

Original witness cannot deny the request made i.e he cannot deny that he
has requested the 2nd witness to give
shahadah on his behalf.

Syahadah bi tasamu’
SBT means giving evidence/shahadah infront of a judge based on the fact
with is widely spread & well known, w/out seeing or listening to the facts by
his own.

it is an exception to the rule that the witness must see/hear the fact by his
own.

SBT is a kind of evidence with reached the status of shahadah & not a
khabar or statement because the expression of ‫ اشهد‬must be used.

Shahadah 6
 MATTERS CAN BE ESTABLISHED BY SBT
•••••••••••
Imam Malik & Imam Shafii:
SBT is admissible in certain limited matters

1. appointment of qadi

2. Will

3. appoint of wali & wakil

4. Paternity

5. nasab (paternity)

6. death

7. suckling

8. waqf (charitable

9. Transaction

10. Marriage

11. Gift (‫& )هديه‬

12. ownership

Hussin Mamat dan dua yang lain lwn. Bustaman Ali (2001) 14 JH(1) 101

Isu of nasab- faraid

The Court empahasised that the jumhur unanimously agreed on the

admissibility of Shahadah bi al tasamu’ in cases relating tonasab, marriage,
fosterage, death etc.

false testimony.
major sin

al haj - 30

‫فاحتنبوا الى من الاوشان واجتنبوا قول الزور‬

Avoid the abomination of idols and avoid the word that is false.

Shahadah 7
 hadith:

Do you want me to tell you the major sins. (the Prophet repeated his
question 3 X). The comp. then replied – Yes! The Prophet … said ‫شرك هللا‬
, disobey the parents, and false testimony.

prohibition is stated together iwth syirk= major sin.

punishment

takzir

discretion of the judge

hanafi: he is punished by advertising him in public

- OR the judge may decide to flog him – 10 lashes

Shafie – minimum of 39 lashes

Selangor Syariah Criminal Code Enactment, 1991-

S.206

fine not exceeding RM2000/

imprisonment not exceeding 1 year/ both

Syariah Criminal Offences (FT) Act 1996, -

s. 30(1)

fine not exceeding RM3000/

not exceeding 2 years imprisonment/both

shahadah al hisbah
giving evidence for the sake of Allah.

no request.

When a person comes forward giving the testimony although without any claim/
complaint and without being asked to do so

He gives the evidence for the sake of Allah.

In shahadah al-hisbah the one who gives the shahadah may become the witness
as well as the claimant.

Shahadah 8
 admissible:

cases relating to the right of ‫ هللا‬i.e drinking liquor, theft, robbery

zakat

free a slave,

will/waqf

marriage

other cases involving the interest of the society in general

cases
Fathillah v Muhammad Ghafar

wife claimed for cerai taklik - deserted wihtout maintenance- summon was
served to the husband, but did not turn up. produce 2 witnesses - qualified -
court order fo rthe wife to take yamin istizhar to avoid suspicion.

not the mean of proof, bcs the case has been successfully proven. sbb dah
panggil witness.

wife can be asked to take yamin istizhar bcs the court will pass judgement in
the absent of the husband.

(biasanya applicable in family law cases)

Siti Zainab v Muhammad Ishak

same facts as above.

4 witnesses. produced by the wife. 2 of them were qualified.

case has been proven.

court asked the wife to taken yamin istizhar.

Rokiah v Maidin

taklik, but rejected bcs there was conflicting evidence by the witnesses and
the pf. so application was rejected.

Rosnah v Shafie

evidence by pf children.

Shahadah 9
 it is not considered as shahadah, only bayyinah. (bcs of their relationship)

Sharifah Sepoyah V Wan Alwi

father give evidence for the daughter= bayyinah.

Hazlina bte Hamidin v Muhamad Zaidi bin Majid

the court emphasised - whetehr the evidence is bayyinah or shahadah

depends on the circumstances of the case.

Abdul Hanif v Rabiah

court: cases which cannot reach level of shahadah cannot be totally rejected,
but accepted as bayyinah, and need to be corroborated.

Faridah binti daud & Sorang Lagi V Mohd Firdaus Abdullah @ Jettle Francis

the pf brought her mother as witness, court accepted as bayyinah. s85(4)

(4) Evidence of a parent for his child and that of a child for his parent is
admissible as
bayyinah.

Che Mas binti Abdullah v Mat Syarie bin Yaacob

evidence given. by the mother - bayyinah . syariah court enactment of

terengganu s83(1).

Nyonya Tahir case

status of religion of the deceased.

children give evidence = bayyinah.

not only relying on the evidence by the children, they relied with kitabah.

held: non muslim.

SOSI V SSSAA

witness is appellants daugther = bayyinah.

maznah binti kasim v osman bin nordin

althugh the actual witness cannot be produced before the ocurt, except
evidence from pf child= bayyinah but still relevant bcs they stayed together,
and they knew what happened.

Shahadah 10
 in pakistan.
Definition

Conditions

much more general.

- Chapter 2 / art 3.
The court shall determine the competence of a witness in accordance with the
qualifications prescribed by the injuctions of Islam as laid down in the Holy Quran
and Sunnah for a witness……

Who may testify.

3. All persons shall be competent to testify unless the court considers that they are
prevented from understanding the questions put to them or from giving rational
answers to those questions by tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind.

examination of witness.

no provision in qanun shahadah.

kalau under hudud- must examine the witness.

Offences Against property (Enforcement of Hudood ) Ordinance 1979 -S 7(b) :

The proof of theft liable to hadd shall be in the following forms, namely:-

1. (a)The accused pleads guilty for the commission of theft liable to hadd: and

2. (b)At least two Muslim adult male witnesses, other than the victim of the theft,
about whom the Court is satisfied, having regard to the requirements of
tazkiyah al-syuhud, that they are truthful persons and abstain from major
sins(kabair), give evidence as eye-witnesses of the occurrence.

•Ghulam Ali v The State

•Examination of witnesses is a condition precedent to the sentence of hudud and

there should be more than one muzakki.(theft case)

Other cases

•Qadeer Hussain v The State (Supreme Court)

Shahadah 11
 •Mazhar Ali v The State ( zina case)

•Muhammad Aslam and Anor v The State (drinking khamr)

•Riaz Ahmad v The State (qisas)

Other than hudud and qisas – no examination of witnesses are required

Chanderbhan and 2 others v The State

Suhail and 3 Ors v The State

number of witnesses.

ikut alquran and sunnah.

art 17 of QS.

brunei.
definition: s3

s103- 107

S 103 : Who can give Bayyinah or Syahadah

S 104: Dumb, deaf or blind witness

S 105: Bayyinah or syahadah of husband, wife , parent and child

S 106: Number of Syahid

S.107:Syahadah of a syahid with yamin = s88 (FT).

Syahadah ala syahadah : s 114 –s117 - FT takde.

Syahid asal unable to appear in Court.

114.
Where a syahid asal is unable to appear in Court for any reason which in the
opinion of the Court is reasonable, his syahadah may be served by other
syahid based on syahadah ala al-syahadah.

Explanation – Where a syahid asal cannot give his syahadah in Court, he

may ask syahid furu’ to serve his syahadah on syahadah given by him.

Shahadah 12
 When syahadah ala al syahadah is admissible.
116.
Syahadah ala al-syahadah is only admissible in a civil case.

Conditions of syahadah ala al syahadah.

117
. Syahadah ala al-syahadah is only admissible on the following conditions –

(a) syahid furu’ on giving his syahadah shall state the name and identity of
the syahid asal;
(b) the syahid asal and syahid furu’ shall meet the conditions to become
syahid;
(c ) syahadah of the syahid asal shall be admitted by syahid furu’ comprising
of at least 2 male persons or a male person and 2 female persons

(d) the syahid asal does not deny that he has asked syahid furu’ to serve
syahadah on his behalf.

tazkiyah al syuhud.
Ensuring the truth of syahadah syahid

S.148:Ensuring the truth of syahadah syahid

S.149: Nature of tazkiyah al syuhud

S.150:Muzakki - FT takde pasal ni.

S.151:Open tazkiyah

S 152:Open tazkiyah forms part of syahadah

S.153: Secret tazkiyah

S 154: Number of secret tazkiyah muzakki - one is enough. more for

precaution.

S. 155:When syahid need not be examined = Ss125 (FT) when witness need
not to be examined. (<6 months, appear before the same judge)

S 156: Accusing syahid not a’dil

S157:When findings of muzakki differ

S 158:Continuation of tazkiyah

Shahadah 13
 S 160: When syahid is required to take yamin = S129 FT.

Shahadah 14