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The Law of Evidence
Islamic Punishments
Javed Ahmad Ghamidi
(Tr. by:Dr. Shehzad Saleem)

In recent times the opinions of our jurists concerning some important issues of the Islamic Law of Evidence, as mentioned in the Qur’ān, have remained a hot subject of debate. We find it appropriate to present our views on these issues so that our learned scholars can deliberate on them from another angle.

The first issue pertains to the testimony of a woman. The general opinion in this regard is that in cases of Hadūd [punishments ordained by God], female witnesses are in no way acceptable. There are affairs in which their testimony is acceptable only when in place of a male witness two of them testify alongside another male witness, while in certain feminine affairs their testimony as sole witnesses is acceptable. Ibn Rushd has summed up the opinions of the jurists on this issue in his celebrate treatise ‘Bidayah-tul-Mujtahid’ in the following way:

There is a general concensus among our jurists that in financial transactions a case stands proven by the testimony of a just man and two women on the basis of the verse: ‘If two men cannot be found then one man and two women from among those whom you deem appropriate’. However; in cases of Hadūd their is a difference of opinion among our jurists. The majority say that in these affairs the testimony of women is in no way acceptable whether they testify alongside a male witness or do so alone. The Zahirees on the contrary maintain that if they are more than one and are accompanied by a male witness then due to the apparent meaning of the verse their testimony will be acceptable in all affairs. Imām Abū Hanīfa is of the opinion that except in cases of Hadūd and in financial transactions their testimony is acceptable in bodily affairs like divorce, marriage, slave-emancipation and rajū [restitution of conjugal rights]. Imām Mālik is of the view that their testimony is no acceptable in bodily affairs which relate to wealth like advocacy and will-testaments. There is however a difference of opinion among the companions of Imām  Malik. Ash-hab and Ibne-Majishūn accept two male witnesses only I these affairs, while to Mālik Ibn Qāsim and Ibn Wahab two female and a male witness are acceptable. As far as the matter of women as sole witnesses is concerned the majority accept it only in bodily affairs, about which men can have no information in ordinary circumstances like the body handicaps of women and the crying of a baby at birth (Kitāb ul Akdhiah)

In our opinion this view of our jurists concerning the testimony of a woman is absolutely incorrect. They have based it upon the following verse of the Qur’ān:

And call in two male witnesses from among your men [over the document of loan]. And if two men cannot be found then one man and two women from among those whom you deem appropriate, so that if either of them gets confused the other reminds her. (2:282)

Two implications of this verse are very clear:

Firstly, it has nothing to do with the bearing of witness over an incident. It explicitly relates to testifying over a document. It is very evident that in the second case witnesses are selected by an external agency, while in the first case the presence of a witness at the site of an incidence is an accidental affair. If we have written a document or signed an agreement, then the selection of witnesses rests upon our discretion, while in the case of adultery, theft, robbery and other similar crimes whoever is present at the site must be regarded as a witness. The difference between the two cases is so pronounced that no law about one can be deduced on the basis of the other.

Secondly, the context and style of the verse is such, that if cannot relate to law or the judicial forums of a state. It is not that after addressing the courts, it is being said that if such a law suit is presented before them by a claimant then they should call in witnesses in this prescribed manner. On the contrary, this verse directly addresses the people who borrow and lend money over a fixed period. It admonishes them that if they are involved in such dealings, then an agreement between the two parties must be written down, and to avoid disputes and financial losses only witnesses who are honest, reliable and morally sound should be appointed. At the same time their personal involvements and occupations should be suited to fulfil this responsibility in a befitting manner. The verse does not at all mean that a law suit will only stand proven in a court if at least  men or one man and two women bear witness to it. We reiterate that the verse is merely a guidance for the general masses in their social affairs and counsels them to abide by it so that any dispute can be avoided. It is for their own benefit and welfare that this procedure should be undertaken.

Consequently, about all such injunctions the Qur’ān says:

This is more just in the sight of God, it ensures accuracy in testifying and is the most  appropriate way for you to safeguard against all doubts. (2-282)

Ibn Qayyam in his treatise Ailām-ul-Muqaīn comments on this verse in the following manner:

It relates to the heavy responsibility of testifying by which a person of wealth protects his rights. It has no concern with the decision of a court. The two are absolutely different from each other. (Vol:1 Page 91)

If both these implications are kept in consideration, it can be safely said that the premises upon which our jurists have based their opinion about the testimony of a woman is infact not valid at all. Hence, in our view in cases of Hadūd, Tāzirāt, Qisās, Diyat (fine exacted for any offence upon a person), Financial Rights, Marriage and Divorce and indeed in all such matters it is upon the discretion of the judge whether he accepts someone as a witness or not. In this regard there is to be no discrimination between a man or a woman. If a woman testifies in a clear and definite manner then her testimony cannot be turned down simply on the basis that there is not another woman and a man to testify alongside her. Likewise, if a man records an ambiguous and vague statement then it cannot be accepted merely on the grounds that he is a man. If a court is satisfied by the statements of witnesses and by circumstantial evidences then it has all the authority to pronounces a case as proven and if it is not satisfied then it has all the authority to reject it even if then man have testified.

There is nothing against our view in any of the traditions of our Prophet (sws) which have been reported by reliable means. In the Qur’ān also testifying over will testaments, divorce, fornication and qazf (false accusation of a man or a woman of fornication] has been mentioned in a manner which has no discrimination for gender, just like many other Qur’ānic injunctions which must be obeyed by both men and women alike. The words that constitute these verses, their structure and context besides all requisites and stipulations of reason and common sense, custom and convention about the meaning of these verses, all are such that women cannot be set apart from the injunctions they imply.

The second issue concerns testifying in cases of Zina (fornication). Our jurists claim that the testimony of witnesses can be accepted only if they have seen the convicted man and woman in position of the criminal act. In our view, this is only required when a case has been filed on the basis of an accusation, and the accused are honourable, virtuous, morally sound and about whom no one can even imagine that they can commit such a crime. The Qur’ān says:

Those who accuse chaste women and do not produce four witnesses as an evidence for their accusation, inflict eighty stripes upon them and never accept their testimony in future. (24:4)

As far as those criminals are concerned who are notorious for their illways and profligacy and who have a general reputation of being dishonourable, then only four honest and virtuous believers should testify that they do infact possess such unworthy characters. We quote from the Qur’ān:

And upon those of your women who habitually commit fornication, call in four people from among yourselves to testify over them. (4:15)

In this verse the words ‘who habitually commit fornication’ and ‘testify over them’ clearly show that for such habitual criminals only a testimony about their characters is all that is required. It is not necessary in these cases that the two parties are seen in the actual act of the crime by the witnesses.

The third issue is that it is generally believed that legally a crime stands proven only by the testimony of witnesses or by the confession of the criminals themselves. IN our view this is also incorrect. Every person, who understands the delicacies of criminology, knows that sometimes circumstantial evidence is enough to prove a crime. Infact, the actual truth is that witnesses can lie but circumstantial evidence never does. There is nothing that refutes this factual reality in the Qur’ān and Sunnah. On the contrary there have been cases reported in some traditions whose decisions were based upon circumstantial evidence. Today, with the use of finger, prints, post mortem reports, medical examinations and other similar aids the extent of certitude obtained about a crime is no less than that obtained by the testimony of witnesses or by the confession of a criminal himself. Our Prophet (sws) has used the word Al-Bayyannah for all such aids. According to Ibne-Qayyam:

The word ‘Bayyannah’ in the language of the Qur’ān, of the Prophet (sws) and of his Companions is the name for every such thing by which the truth becomes evident. Hence, contrary to its connotations in the terminology of the jurists, it has a wider meaning because they only use it for an oath and a witness taken together or two witnesses. (Ailām-ul-Muaqīn, Vol:1, Page: 90)

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