CHAPTER-15
EVIDENCE
Definition
It is not easy to define evidence. However, evidence is the information given personally or drawn from documents tending to establish facts. Statements or proofs admissible as testimony in a court are called evidence. It is a thing which shows or establishes the truth or falsity of some fact, allegation or claim in a tribunal. It is that thing which is legally submitted before a competent authority or court as a means of ascertaining the truth of anything under investigation.
Evidence is essentially required in contracts, business transactions, purchase and sale of goods and property. It is also required to establish a claim, to prove an offence, to hand over property to an orphan when he attains puberty, to contract marriage, to give divorce, etc.
Verses of the Qur’an
Please refer to the following verses of the Holy Qur’an in order to understand the law of evidence: 2:140; 2:282-283; 4:6; 4:45; 4:135; 5:8; 5:106-108; 12:25-28; 24:4; 24:6-9; 65:2
Traditions of Prophet Muhammad
1) Zaid-b-Khalid reported that the messenger of Allah said: Shall I not inform you about the best of witnesses? He who comes with his deposition before he is asked for it. (Muslim)
2) Kheram-b-Fatek reported that the Messenger of Allah prayed the morning prayer. When he finished, he stood and said: False evidence has been made equal to the setting up a partner with Allah. He repeated this thrice. Then he read: Avoid worship of idols and avoid false depositions, being sincere for Allah, without setting up a partner for him. (Abu Daud, Ibn Majah, Ahmad, Tirmizi)
3) Ayesha reported that the Messenger of Allah said: The deposition of a treacherous man and a treacherous woman is not admissible, not of a man who has been whipped for an ordained crime, not of a man who has enmity with his brother, not of a slave who attributes his freedom to a stranger, not of a relative, not of a man who is pleased with the members of his family. (Tirmizi Rare)
4) Ibn Abbas said: The Holy Prophet (may peace be upon him) said to a man whom he asked to take an oath: Swear by Allah except Whom there is no God that you have nothing belonging to him, i.e. the plaintiff. (Abu Daud)
5) Al-Sha’bl Said: A Muslim was about to die at Daquqa, but he did not find any Muslim to call him for witness to his will. So he called two men of the People of the Book for witness. Then they came to Kufah, and approaching Abu Musa al-Ash’ari they informed him (about his) will. They brought his inheritance and will. Al-Ash’ari said: This is an incident (like) which happened in the time of the Apostle of Allah (may peace be upon him) and never occurred after him. So he made them to swear by Allah after the afternoon prayer to the effect that they had not misappropriated, nor told a lie, nor changed, nor concealed, nor altered, and that it was the will of the man and his inheritance. He then executed their witness. (Abu Daud)
6) Narrated Anas: The Prophet was asked about the great sins. He said, “They are:-
(a) To join others in worship with Allah.
(b) To be undutiful to one’s parents.
(c) To kill a person (which Allah has forbidden to kill) (i.e. to commit the crime of murder).
(d) And to give a false witness.” (Bukhari)
Rules
Following are the rules which have been laid down regarding evidence by the revealed Book of Islam and Prophet Muhammad (PBUH):
1. Hide not testimony. He who hides it, verily his heart is sinful. None is more unjust than he who hides a testimony which he has received from Allah. (Al-Qur’an 2:140, 283)
2. When you contract a debt for a fixed term (or make anyother contract), record it in writing. Make two men from among your people as witnesses. If two men are not available, then one man and two women must be made witnesses. The reason of making evidence of two women equal to one man is that if one of them forgets the other woman would remind her. (Al-Qur’an 2:282)
3. The witnesses must not refuse when they are summoned to give evidence. (2:282)
4. It is better to have witnesses when one sells anything to another. (2:282)
5. No harm should be done to scribe who writes down the transaction or contract and to the witness who gives evidence. If you do them any harm you are a sinner. (2:282)
6. When an orphan (who is in your guardianship) attains puberty, deliver to him his property and have the transaction witnessed in his presence. (Al-Qur’an 4:6).
7. For establishing and proving the offence of adultery or fornication, evidence of four witnesses is required, unlike anyother matter where only two witnesses would suffice. (4:15, 24:4)
8. In your evidence you should be fair and just witnesses for the sake of Allah, though the evidence goes against you or your parents or your near relations whether they are rich or poor. You should not follow your passions lest you lapse from truth. (4:135)
9. Be steadfast witnesses for Allah in equity, and let not hatred of any reason seduce you from the right path. (5:8).
10. For a will or a bequest evidence of two witnesses is required. (5:106)
11. The witnesses must not take bribe, must not favour a relative and must not hide testimony. If they do so, they are indeed sinful.
12. Apart from direct and written evidence, the Qur’an (chapter 12 verses 25 to 28) permits circumstantial evidence also.
13. At the time of divorce, reunion or remarriage, evidence of two just witnesses is required who are steadfast and upright in testimony.
14. The best witness is he who comes with his deposition before he is asked for it.
15. False evidence is equal to ‘Shirk’ (setting up a partner with Allah) and the sin of ‘Shirk’ is a major sin. Paradise is unlawful for him who takes a false oath and thus acquires properties of others.
16. The evidence of the following persons is inadmissible:
(i) That of a treacherous man and a treacherous woman.
(ii) That of one who has been whipped for an ordained crime.
(iii) That of one who has enmity with the accused.
(iv) That of a slave in favour of his master.
(v) That of a near relative in favour of a near relative such as evidence of a son in favour of his father.
(vi) That of a person who is under obligation to the plaintiff or the defendant.
(vii) That of a fornicator and fornicatress.
(viii) That of one who is dependent on a family (in favour of that family).
(ix) That of criminals like slanderers, murderers, thieves, dacoits, wine-drinkers, public singers, prostitutes, usurers, heretics, etc.
(x) That of a person who made a false charge against the chastity of a woman and has been punished in accordance with injunction of the Holy Qur’an. (24:4)
17. False evidence is one of the major crimes and cardinal sins.
18. A man who is witness can be made to swear by Allah except Whom there is no God that he would speak truth and hide nothing.
19. If non-Muslims are made witness to inheritance and will, they should be asked to swear by Allah that they had not misappropriated anything, that they had not told lie, and that they had not changed, concealed or altered anything, etc.
20. An offence liable for Hudood may be concealed and the Islamic principle that hiding of testimony is a great sin does not apply to it. Prophet of Islam is stated to have said: “Whoso conceals the vices of his brother Muslim shall have a veil drawn over his own crimes in the two worlds by Allah”. The Prophet is also reported to have spoken to a man who had brought a case of adultery to the court of the Prophet: “Verily it would have been better for you if you had concealed it”. This rule applies only when the case is not brought to a court of law. But once the case is brought in a court, then the true evidence should neither be concealed, nor false one should be produced.
21. The qualifications of a witness regarding his capacity and competence are:
(i) The witness must be of a noble character, of virtuous habits and known for piety, honestly and truthfulness. Persons known to be habitual liars, drunkards or gamblers, fasiq or persons of loose character, persons who are notorious for indulging in major sins, persons who are convicted of ordained crimes (Hudood), persons carrying on certain professions of degrading nature like dancers or prostitutes are not admitted as witnesses.
(ii) Persons giving evidence should be mature, sensible and should have power of understanding, perceiving, of sight, hearing and speaking. A small child, a lunatic, a blind person, a deaf or dumb is not generally admitted as a witness.
(iii) The witness should be free from bias and prejudice. Therefore evidence of a father in favour of son, of a son in favour of father, of a slave in favour of his master, of a person against his enemy, of a non-Muslim against a Muslim, etc. is not admissible.
Oath
Oath means solemn promise to do something or solemn declaration that something is true. Technically, oath stands for swearing (usually in the name of Allah) to tell the truth in a court of law. Those who enter upon important offices in government or public affairs are also required to take oath holding a solemn promise to do their duties faithfully. Even in everyday life we take oaths or swear to make our statements and assertions more convincing and reliable.
There is a lot of guidance in the Qur’an and the Sunnah about oath. If one is called upon to take oath, he should swear in the name of God and not in the name of his parents or forefathers or his dear ones or country or idols. Taking oath in the name of someone other than Allah tantamount to holding partners with God which is a great sin. For taking intentional oaths, one is answerable while unintentional oaths are not held accountable. For breaking of vows expiation has been prescribed by the Qur’an. Taking false oath is a great sin which is to be punished in this world as well as in the hereafter. Paradise is unlawful for a person and Hell is sure for him if he takes the right of his brother Muslim with his (false) oath. The Qur’an has prescribed the procedure for taking oath in case of bequest where doubts arise about the reliability of witnesses. The procedure of swearing has also been laid down by the Holy Book in case of allegation of adultery by the husband against his wife when he has no witnesses.
To understand the law of oath, kindly refer to Al-Qur’an 2:224-225, 5:89, 5:106-107, 16:91, 16:94, 24:6-9, 58:14-16,
Also keep in view, the following Ahadith of the Messenger of Allah (PBUH):
1- Abdur Rahman-b-Samorah reported that the Prophet said: Swear not in the name of idols, nor in the name of your forefathers. (Muslim)
2- Ibn Umar said: I heard the Messenger of Allah say: Whoso takes oath in name other than of Allah, sets up indeed a partner with Him. (Tirmizi)
3- Abu Omamah reported that the Prophet said: Whoso takes the right of a Muslim with his oath, Allah makes Hell sure for him and Paradise unlawful. A man asked him: O Prophet of Allah, even though it be a small thing? He said: Even if it is a rod of Arak. (Muslim)
4- Amr-bin-Shuaib reported from his father from his grand-father that the Messenger of Allah said: Proof is upon the plaintiff and oath is upon the defendant. (Tirmizi)
Confession
Following conditions have been prescribed by the jurists (fuqaha) which should be satisfied before acceptance of the confession:
(i) The person making the confession should be sane and at the time of making confession he should not be in the state of intoxication.
(ii) The confession should be in plain and unambiguous words.
(iii) The confession made under external pressure, coercion or duress, or made in a jest is not acceptable.
(iv) The confession should be unconditional, unqualified and voluntary.
(v) For conviction in a case of adultery, confession must be made four times.
(vi) If the fact admitted or confessed is contradicted by apparent and obvious circumstances, the confession is not acceptable.
The sanction behind the law of confession is derived from the Sunnah particularly the action of the Prophet in the cases of those who came to the Prophet and confessed the offences committed by them. In this respect case of Ma’iz bin Malik is generally quoted which, as briefly stated, is an under:
Buraida told that Ma’iz b. Malik came to the Prophet and said, “Purify me, messenger of God.” He replied, “Out upon you! Go back, ask God’s forgiveness and turn to Him in repentance.” He said that he went back not very far, then came and said, “Purify me, messenger of God,” and the Prophet said the same as he had said before. When this went on till a fourth time he asked, “For what am I to purify you?” and he replied that it was because of fornication. God’s messenger then asked if the man was mad, and when he was told that he was not, he asked if he had drunk wine: A man got up and smelt his breath but noticed no smell of wine, so the prophet asked him if he had committed fornication, and when replied that he had, he gave orders regarding him and he was stoned to death. (Muslim)
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