Islamic law of Evidence

Introduction:

“O! Ye who believe! He ye staunch in justice, witness for Allah,

even though it be against yourself...”

Proof is of vital importance in the process of administration of Justice. The

Holy Prophet (PBUH) said, “If people are given what they asked, when they
bought a case, some would claim the lives and properties of others...” It is a
check against a false and vexatious suit. In every system of jurisprudence, it is
recognized that before a fact is accepted and acted upon, it must be proved by
the party asserting that fact, for which evidence is the foundation. The Islamic
system of administration of justice provides both substantive law as well as,
procedural law methods. The substantive law is termed as Sharia’ and the
procedural law methods as, ‘Minhaj’ by the Quran. As; “We have prescribed
for each one of you the substantive law and the procedural method"

The Prophet (PBUH) calls procedural methods as, the world affairs and says, ~
You (people) know better your worldly affairs...”

MEANING OF EVIDENCE

The term evidence means exclusive of mere arguments the truth of which is
submitted to judicial investigation’. The word evidence’s equivalent in Arabic is
‘Bayan’, which signifies expression. Everything which leads to truth is included
in ‘Bayanah”.

The term bayanah is the name given to all those things which explain and
clarify a right and it is mostly used for ‘Shahada’, meaning, “Giving information
as to a person’s right in favour of another against the third person.” Shahid is a
person who gives evidence, mash-hud aleyh is a person against whom
evidence is given, mash-hud leh is a person for whom evidence is given, while
mash-hud bih is the right proved.
Definition:

Evidence “something legally submitted to a tribunal to ascertain the truth of

a matter.”

According to Holy Prophet Muhammad (PBUH)

Holy Prophet Muhammad has used the word “Bayyinah” for evidence, which
means anything that manifests the facts disputed in a court.

Importance in The Holy Quran And Sunnah

• Holy Quran Says, “Do not conceal testimony. He who conceals it, his
heart is sinful”. (Surah-al-Baqra-282)
• Saying of the Holy Prophet Muhammad (PBUH)
• “If people were given what they asked they brought a case, some would
claim the lives and property of others.”

LAW OF EVIDENCE:

The law of evidence basically deals with the procedural methods. One object of
this law is to lay down principles to prove the facts relevant for decision of the
case in hand. In every legal system it is recognized that before a fact is
accepted and acted upon, it must be proved beyond doubt and this is done
through elaborative evidentiary rules. The whole law of evidence revolves
around three angles i.e.

• Proved
• Unproved
• Disproved

In the first case, a fact will be considered fully proved and will be acted upon
accordingly, in the second one, party alleging the fact fails to prove it and in
the last one even though party brings evidence but due to some technical
grounds court of law disproves it and rejects that evidence.
BASICS OF LAW OF EVIDENCE

The law of evidence is based on Quran and Sunnah. The Quran emphasizes on
giving evidence. A witness must be just and reliable; in fact, they are the judges
of the cause.

Holy Quran states, “And witness must not refuse when they are summoned”.

BURDEN OF PROOF

It means the burden of establishing a case and the duty of necessity of

introducing evidence. The general rule is, “who asserts must prove”. It is a
common practice that the burden of proof lies on the party that substantially
asserts the affirmation of the issue and not upon the party who denies it. The
Holy Prophet (PBUH) said,

“The plaintiff must produce witness and oath is for the defendant.”

MODES OF PROVING A CASE

There are three modes of proving a case, i.e.

I. Admission or Confession (Iqrar)

II. Oath (Halaf)
III. Evidence or Witness (Shahadat)

I. Admission or Confession

The corresponding Arabic word for admission or confession is, “Iqrar”. It is well
known principle of evidence that the admitted facts need not be proved. The
confession of the defendant is of vital importance in the decision of a case. The
Holy Prophet (PBUH) said,

“Speak the truth even if it is against you...”

Also, Holy Quran spells out the admissibility of admission in Sura-e-Nisa verse
135. A person is not allowed to retract his admission if it pertains to the rights
of others. In the cases of Hudood, a person cannot be punished on the basis of
retracted confession. Admission binds the maker, but an admission on behalf
of other person is not admissible in evidence’.

II. Oath:

Oath is considered a guarantee of truth and authenticity of one’s words or

‘Bayan’. A special sanctity is attached to it, as it is an affirmation in the name of
Allah, the greatest. The form of oath is unknown, but it appears that the pre-
Islamic Arabs used to swear by Habal, their chief deity, or by their ancestors
and at the end of the ceremony would throw down a whip or bow or sandal as
a token that they had taken a binding oath. However, under Islamic law of
evidence, oath is always taken in the name of Allah.

Holy Prophet (PBUH) says,

“God forbids you to swear by your fathers. If anyone swears he must swear by
Allah, or keep silent...”

Oath is acceptable in civil cases and not in criminal cases. It is weak method of
proof which does not terminate a dispute. If trustworthy evidence is on one
side and oath on the other, the latter will be rejected. Refusal to take oath is
amount to admission. Such refusal is, however, in itself a weak method of
proof, which should be corroborated’.

III. Evidence or Witness

Bayanah is derived from Bayan, which signifies expression. Everything which

leads to the truth is included in Bayanah. The common term used for it is
Shahada. It has following kinds:

➢ Giving an information about one party’s right over another

➢ This can be either in form of some material such as documents, known
as evidence or may be in shape of a person who narrates the facts,
called witness. In both cases judge ascertains the genuineness of the
document or truthfulness or adl of witness ihrouch definite rules made
under the law. Holy Quran says,
“Hide not testimony, He who hide it, verily his heart is sinful”
INQUIRY INTO COMPETENCY OF WITNESS

It is one of the most important duties of a Judge to inquire about the

competency of witness, put forward by the party. in front of him. For this
purpose, se in Hudood cases he follows the procedure termed as, ‘tazkia-tul-
shuhood’.

Holy Quran states,

“O! Ye! Who believe! If a person of disputed character narrates a fact before
you, ascertain the truth...”

TAZKIA-TUL-SHUHOOD

Tazkia means, an institution of inquiry in the character of witness while,

shuhood is used for witness in legal cases, Therefore, it is the judgment
regarding competency of a witness ascertained by the qazi or a Judge or a
mode of inquiry adopted by the court to satisfy itself as to credibility of a
witness, Usually people misunderstand the concept and state that it is the
qualification of a witness in Hudood cases, it is not the qualification or
competency of a witness, rather it is a method through which a qazi or judge
investigates into the competency of a witness, before relying upon his
testimony. A witness must have following characteristics to fulfill the
requirements of tazkia-tul-shuhood:

i. Muslim (in hudood cases)

ii. Adult
iii. Sane
iv. Never committed major sins
v. Having good and reliable character
vi. Physically fit
vii. Competent to record evidence
viii. Capable of five human senses
ix. Eye-sight in the case of facts capable to being seen
x. Honesty and moral uprightness
xi. Capacity of communication in case of Hudood
 xii. Not debarred under Qazf
xiii. Not debarred otherwise by the court of law
xiv. Must be of good reputation
xv. Not convicted of perjury or giving false evidence, subject ot certain
exceptions
xvi. Having no motive behind (freedom from prejudice and bias)
xvii. Mentally fit
xviii. To be a male, in cases of Hudood and Qisas.
xix. The witness is to be of the same religion as that of party against whom
appearing or should be Muslim

WHO CAN BE A WITNESS

Following are held to be competent witness provided other formalities are

fulfilled and there is no restriction on their testifying:

i. Physically and mentally fit person

ii. Competent to record and narrate the evidence
iii. Capable of five human senses in majority cases Not debarred under Qazf
iv. Good reputation
v. Adult in majority cases included hudood, but in many cases evidence of
a child of tender age is also accepted
vi. Usually having same religion as of parties Must qualify the test of tazkia-
tul-shuhood in hudood cases.
Holy Quran’ states,
“And call to witness two just men among you.”

REJECTION OF EVIDENCE

Court can reject the evidence of following:

I. Insane and idiot

II. Persons of short memory in case witness is appearing after a long time
of happening of the event
III. Women in hudood cases
IV. Evidence of enemy against enemy
 V. Evidence of hypocrite
VI. Close family member's evidence in favour of party except in family and
other matters where evidence of fast friends and family members is the
only possible evidence
VII. As per some jurists, evidence of singers, actors etc. cannot be taken in
many matters
VIII. Persons who make fun of religion
IX. Evidence of addicted persons, when they are under the influence of
addiction
X. Apostate and person of bad repute
XI. Usurper and gambler
XII. Evidence of habitual liar and person involved in illegal business
XIII. In certain cases, of non-payer of Zakat and other government taxes, if he
be liable to pay

Kinds of Evidence

Following are the major kinds of evidence under Islamic law;

➢ Primary or direct evidence

➢ Secondary evidence
➢ Circumstantial evidence
➢ Universal Evidence
➢ Documentary Evidence

Competency of Women as Witness

The Competency of women as a witness is discussed under the following heads

Competency in Hudood Cases

The competency of women in cases, belonging to the category of violation of

right of Allah, viz Hudood, is that she is regarded as incompetent.
Competency in Cases Where Violation of Right of Individual is Involved

In case where violation of right of individual is involved such as Tazir, the

testimony of women is accepted if the prescribed Nisab is observed, that is the
testimony of one male and two female witnesses.

Conclusion
To conclude, it can be stated that evidence is considered very vital in Islamic
laws as far as solution of matters is concerned: Islam, on the one hand, makes
it obligatory for a witness to give evidence about a matter or occurrence of an
incident through description of certain facts and not through presumption, and
on the other hand, makes the courts bound to pass their decisions on the basis
evidence after proper examination of the evidence and not on the basis of
presumption.