Method of Proving a Crime: Two Exceptions
Since the Qur’an has in no way obligated us to adopt a
particular method in proving a crime, it is absolutely certain that a crime
stands proven in Islamic law just as it is done so in accordance with the
universally acceptable methods of legal ethics endorsed by sense and reason.
Consequently, if circumstantial evidence, medical check-ups, post mortem
reports, finger prints, testimony of witnesses, confession of criminals, oaths
and various other methods are employed to ascertain a crime, then this would be
perfectly acceptable by the Islamic law.
It is to this fact that the Prophet’s words ‘to
substantiate a crime is the claimant’s responsibility, and the person who
refutes it will have to swear an oath’ (Tirmazee, Kitaab-ul-Ahkaam) allude to.
In the words of Ibni Qayyam:
"The word `bayyinah' in the language of the Qur’an, of
the Prophet (sws) and of his Companions is the name of everything 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 two witnesses
or an oath and a witness." ("Ailaam-ul-Mooqai`een", Vol 1, Pg 90)
However, there are two exceptions to this:
Firstly, if a person accuses a chaste and righteous man or
woman having a sound reputation of fornication. In this case, the Qur’an
stresses that the accuser shall have to produce four eye-witnesses. Anything
less than this will not prove his accusation. Circumstantial evidence or medical
examination in this case are absolutely of no importance. If a person is of lewd
character, such things have a very important role, but if he has a morally sound
reputation, Islam wants that even if he has faltered, his crime should be
concealed and he should not be disgraced in the society. Consequently, in this
case, it wants four eye-witnesses to testify and if the accuser fails to produce
them, it regards him as guilty of qazf. The Qur’an says:
"Upon those who accuse honourable women [of fornication]
and bring not four witnesses as evidence [for their accusation], inflict eighty
stripes, and never accept their testimony in future. They indeed are
transgressors. But those who repent and mend their ways, Allah is Oft-Forgiving
and Most-Meciful." (24:4-5)
Secondly, to purge an Islamic state from prostitutes who,
inspite of being Muslims, do not give up their life of sin, the only thing
required, according to the Qur’an, is that four witnesses should be called forth
who are in a position to testify that a particular woman is a prostitute by
profession. In this case, it is not necessary at all that they be eye-witnesses.
If they testify with full responsibility that she is known as a prostitute in
the society and the court is satisfied with their testimony, then they can be
given any of the punishments fixed by the Qur’an for habitual criminals. The
Qur’an says:
"And upon those of your women
who habitually commit fornication, call in four people from among yourselves
to testify over them; if they testify [to their ill-ways], confine them to their
homes till death overtakes them or God finds another way for them." (4:15)
Whether it is the question of four witnesses in these two
cases, or of other evidence in any other crime it is left to the discretion of
the judge whether he accepts someone as 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, 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, 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 any circumstantial
evidence, it has all the authority to pronounce a case as proven and if it is
not satisfied, it has all the authority to reject it even if ten men have
testified.
(Adapted from Ghamidi's "Meezaan")
---Shehzad Saleem
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