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Since the Qur’an has in no
way bound the Muslims 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 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 Islamic law.
It is to this fact that the following
words of the Prophet (sws) allude to:
الْبَيِّنَةُ
عَلَى
الْمُدَّعِي
وَالْيَمِينُ
عَلَى
الْمُدَّعَى
عَلَيْهِ [ترمذى:
رقم 1261]ه
To substantiate a crime is the claimant’s responsibility,
and the person who refutes it will have to swear an oath. (Tirmadhi:
No. 1261)
In the words of Ibn Qayyim:1
البينة
في كلام الله
و رسوله و
كلام الصحابة
اسم لكل ما
يبين الحق
فهي اعم من
البينة في
اصطلاح
الفقهاء حيث
خصوها
بالشاهدين أو
الشاهد
واليمين
The word ‘Bayyinah’ in the language of
the Qur’an, of the Prophet (sws) and of his Companions (rta) 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.
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 Qadhf. The Qur’an says:
وَالَّذِينَ
يَرْمُونَ
الْمُحْصَنَاتِ
ثُمَّ لَمْ
يَأْتُوا
بِأَرْبَعَةِ
شُهَدَاءَ
فَاجْلِدُوهُمْ
ثَمَانِينَ
جَلْدَةً
وَلَا
تَقْبَلُوا
لَهُمْ
شَهَادَةً
أَبَدًا
وَأُوْلَئِكَ
هُمْ
الْفَاسِقُونَ
إِلَّا
الَّذِينَ
تَابُوا مِنْ
بَعْدِ
ذَلِكَ
وَأَصْلَحُوا
فَإِنَّ
اللَّهَ
غَفُورٌ
رَحِيمٌ (24 :4-5)ه
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 Most-Forgiving
and Ever-Merciful. (24:4-5)
Secondly, to purge an Islamic state from
prostitutes who, in spite 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:
وَاللَّاتِي
يَأْتِينَ
الْفَاحِشَةَ
مِنْ
نِسَائِكُمْ
فَاسْتَشْهِدُوا
عَلَيْهِنَّ
أَرْبَعَةً
مِنْكُمْ
فَإِنْ
شَهِدُوا
فَأَمْسِكُوهُنَّ
فِي
الْبُيُوتِ
حَتَّى
يَتَوَفَّاهُنَّ
الْمَوْتُ
أَوْ
يَجْعَلَ
اللَّهُ
لَهُنَّ
سَبِيلًا (15:4)ه
And upon those of your women2
who commit fornication, call in four people from among yourselves3 to testify
over them; if they testify [to their ill-ways], confine them to their homes
till death overtakes them or God formulates another way for them. (4:15)
Barring these two exceptions, the Shari‘ah
does
not in any way bind the court to follow any prescribed procedure to ascertain
a crime. Consequently, in cases of Hudud punishments or in those
of evidence in any other crime, in the view of this writer, it has been
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 men and
women. 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.
Except in cases where the Qur’an
has
used the words ‘منكم’ (minkum: from among you)
as in 4:15 above, similar is the case with the testimony of non-Muslims:
It is left to the discretion of a judge.
Here it should remain clear that our
jurists hold a different view in this matter. Ibn Rushd has summed up the
opinions of the jurists on this issue in his celebrated treatise Bidayatu’l-Mujtahid
in
the following words:
واتفقوا
على انه تثبت
الأموال
بشاهد عدل
ذكر و
امرأتين
لقوله تعالى :
فرجل
وامرأتان ممن
ترضون من
الشهداء
واختلفوا في
قبولهما في
الحدود فالذي
عليه الجمهور
انه لاتقبل
شهادة النساء
في الحدود
لامع رجل ولا
مفردات وقال
أهل الظاهر :
تقبل إذا كان
معهن رجل
وكان النساء
اكثر من
واحدة في كل
شىء على ظاهر
الآية وقال
ابوحنيفه :
تقبل في
الأموال
وفيما عدا
الحدود من
أحكام
الأبدان مثل
الطلاق
والرجعة
والنكاح
والعتق ولا
تقبل عند
مالك في حكم
من أحكام
البدن واختلف
أصحاب مالك
في قبولهن في
حقوق الأبدان
المتعلقة
بالمال مثل
الوكالات
والوصية التي
لا تتعلق الا
بالمال فقط
فقال مالك
وابن القاسم
وابن وهب :
يقبل فيه
شاهد
وامرأتان
وقال أشهب
وابن
الماجشون : لا
يقبل فيه الا
رجلان واما
شهادة النساء
مفردات اعنى
النساء دون
الرجال فهي
مقبولة عند
الجمهور في
حقوق الأبدان
التي لا يطلع
عليها الرجال
غالبًا مثل
الولادة
والاستهلال
وعيوب النساء
There is a general consensus among the 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
as witnesses’. However; in cases of Hudud, there 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 Zahiris on the contrary maintain
that if they are more than one and are accompanied by a male witness, then
owing to the apparent meaning of the verse their testimony will be acceptable
in all affairs. Imam Abu Hanifah is of the opinion that except in
cases of Hudud and in financial transactions their testimony is
acceptable in bodily affairs like divorce, marriage, slave-emancipation
and raju‘ [restitution of conjugal rights]. Imam Malik is
of the view that their testimony is not acceptable in bodily affairs. There
is however a difference of opinion among the companions of Imam Malik
regarding
bodily affairs which relate to wealth like advocacy and will-testaments
which do not specifically relate to wealth. Consequently, Ash-hab and
Ibn
Majishun accept two male witnesses only in these affairs, while to
Malik Ibn Qasim 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 physical handicaps of
women and the crying of a baby at birth.4
The jurists have based their view upon
the following verse of the Qur’an:
وَاسْتَشْهِدُوا
شَهِيدَيْنِ
مِنْ
رِجَالِكُمْ
فَإِنْ لَمْ
يَكُونَا
رَجُلَيْنِ
فَرَجُلٌ
وَامْرَأَتَانِ
مِمَّنْ
تَرْضَوْنَ
مِنْ
الشُّهَدَاءِ
أَنْ تَضِلَّ
إِحْدَاهُمَا
فَتُذَكِّرَ
إِحْدَاهُمَا
الْأُخْرَى (282:2)ه
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 as witnesses
so that if either of them gets confused the other reminds her. (2:282)
In the opinion of this writer, this view
of our jurists concerning the testimony of a woman is not correct owing
to the following two reasons:
Firstly, the verse 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 it cannot relate to law or the judicial forums of
a state. It is not that after addressing a court of law that it has been
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 people who borrow and lend money over a fixed
period. It urges 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 involvement
and occupations should be suited to fulfill this responsibility in a befitting
manner. The verse should not be taken to mean that a law-suit will only
stand proven in court if at least two men or one man and two women bear
witness to it. It is reiterated 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 directives
the Qur’an says:
ذَلِكُمْ
أَقْسَطُ
عِنْدَ
اللَّهِ
وَأَقْوَمُ
لِلشَّهَادَةِ
وَأَدْنَى
أَلَّا
تَرْتَابُوا
(282:2)ه
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 Qayyim comments on this verse
in the following manner:
فهذا
في التحمل
والوثيقة
التي يحفظ
بها صاحب
المال حقه
لأفي طريق
الحكم وما
يحكم به
الحاكم فان
هذا شيء وهذا
شئ
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.5
In recent times, two new arguments have
been advanced by various quarters to lend support to the view of the jurists
concerning the testimony of women.
The first of these arguments is based
on the words ‘اربعة
شهداء’ (arba‘atah shuhada: four witnesses)
of 24:4 and ‘اربعة
منكم’ (arba‘atan minkum: four [witnesses] among you) of
4:15. It is held that since ‘اربعة’ (arba‘atah) is in the feminine
gender and according to the established principle of Arabic grammar the
‘معدود’ (ma‘dud: the counted object) this ‘عدد’ (‘adad:
the numeral) qualifies should be masculine. Consequently, by the words
‘اربعة
شهداء’ (arba‘atah shuhada: four witnesses) four men are necessarily
implied; women cannot be included.
On a first look, this argument seems to be based on strong
grounds since it is in accordance with the rules of Arabic grammar. However,
a closer look reveals how baseless it actually is. Any one who has some
knowledge of Arabic knows that this rule not only states that from three
to ten if the ‘معدود’ (ma‘dud: the counted object) is masculine
the ‘عدد’ (‘adad: the numeral) is feminine but also says that
if the ‘معدود’
(ma‘dud: the counted object) is a noun that is
used both for masculine and feminine entities, then also its ‘عدد’ (‘adad: the numeral) shall necessarily be feminine.
Consequently, in the following verses the ‘عدد’ (‘adad: the numeral) of ‘ازواج’ (azwaj: pairs), which
is the counted object is ‘ثمانية’ (thamaniyah) which is in the
feminine gender:
ثَمَانِيَةَ
أَزْوَاجٍ
مِنْ
الضَّأْنِ
اثْنَيْنِ
وَمِنْ
الْمَعْزِ
اثْنَيْنِ
قُلْ
أَالذَّكَرَيْنِ
حَرَّمَ أَمْ
الْأُنْثَيَيْنِ
(143:6)ه
[Take] eight pairs: of sheep a pair, and of goats
a pair; say, has He forbidden the two males or the two females… (6:143)
Consider also the following verses:
مَا
يَكُونُ مِنْ
نَجْوَى
ثَلَاثَةٍ
إِلَّا هُوَ
رَابِعُهُمْ
وَلَا
خَمْسَةٍ
إِلَّا هُوَ
سَادِسُهُمْ
(7:58)ه
There is not a secret consultation between three,
but He makes the fourth among them, – nor between five but He makes the
sixth. (58:7)
As in the case of ‘اربعة
منكم’ (arba‘atan
minkum), the ‘معدود’ (ma‘dud: the counted object) of
‘ثلاثة’ (thalathah: three) and that of ‘خمسة’ (khamsah:
five) has been suppressed owing to its obviousness. The suppressed ‘معدود’ (ma‘dud: the counted object) is something to the effect of ‘نفر’ (nafr: group). Since nafr is a word that can be spoken
both for masculine and feminine genders, its ‘عدد’ (‘adad: the numeral)
in the verse is also feminine.
Similar examples can be found in the
following Ahadith also:
وَطَعَامُ
الِاثْنَيْنِ
يَكْفِي
الْأَرْبَعَةَ
(دارمى: رقم 2044)ه
The food of two suffices for four. (Darmi:
No. 2044)
إِذَا
كَانَ
ثَلَاثَةٌ
فَلَا
يَتَنَاجَى
اثْنَانِ (مسلم:
رقم 2183)ه
If there are three people [present] two [of them] should
not whisper. (Muslim: No: 2183)
مَا
مِنْ
مُسْلِمٍ
يَشْهَدُ
لَهُ
ثَلَاثَةٌ
إِلَّا
وَجَبَتْ
لَهُ
الْجَنَّةُ (ترمذى:
رقم 1059)ه
If three bear witness for a Muslim, he shall
definitely enter paradise. (Tirmadhi: No. 1059)
رُفِعَ
الْقَلَمُ
عَنْ
ثَلَاثَةٍ
عَنْ
النَّائِمِ
حَتَّى
يَسْتَيْقِظَ
(ابو داؤد: رقم
4398)ه
Three people cannot be held liable: [one among
them is] a person who is sleeping until he awakens. (Abu Da’ud:
No. 4398)
In these Ahadith also, the numerals
‘اربعة’ (arba‘atah) and ‘ثلاثة’ (thalathah)
are feminine and any one who knows the language can in no way insist that
the ‘معدود’ (ma‘dud: the counted object) of these numerals are
only men and that women cannot be implied.
The second of these arguments is that
since 2:282 (quoted above) mentions that a woman might get confused thereby
casting a doubt in her testimony, so in accordance with the following words
attributed to the Prophet (sws) whereas a Hadd punishment can in
no case be given in cases in which they have testified, a Ta‘zir punishment
can be given in such cases:
اِدْرَؤُا
الْحُدُوْدَ
بِالْشُبْهَاتْ
Do not enforce a H~add punishment if there is
a doubt.6
The following Ahadith are of similar
meaning also:
ادْرَءُوا
الْحُدُودَ
عَنْ
الْمُسْلِمِينَ
مَا
اسْتَطَعْتُمْ
(ترمذى: رقم 1424)ه
Refrain from enforcing Hudud as much as
is possible for you. (Tirmadhi: No. 1424)
ادْفَعُوا
الْحُدُودَ
مَا
وَجَدْتُمْ
لَهُ
مَدْفَعًا (ابن
ماجه: رقم 2545)ه
Withdraw Hudud wherever you can find a
plea. (Ibn Majah: No. 2545)
A little deliberation shows that this
argument also is baseless.
Firstly, if in a particular case a
woman does in fact get puzzled while giving her testimony and the court
reaches the conclusion that her testimony has become ambiguous as a result,
it certainly has the right to disregard her testimony. However how can
this be made a general principle of law and on its basis a woman’s testimony
be forsaken for ever. Just as there is a chance that she might get puzzled
while giving her testimony, there is an equal if not a stronger one that
she may testify in a clear and unambiguous manner. The Qur’an has
mentioned her testifying in a state of confusion as a chance occurrence
and not as a general or a certain one. A chance is just a chance and on
what grounds can it be made a general principle?
Secondly, the Hadith in no
way means that if there is some doubt, a Hadd punishment shall not
be given; it only means that in case of doubt no punishment at all can
be given. The word Hadd has not been used as a term here; it is
used in its literal sense for the term came into existence much after the
Prophet (sws). What he has reported to have said is based on the universal
principal of the ethics of law that since in case of doubt a crime does
not stand proven, the criminal cannot be punished. Consequently, if these
people say that a Ta‘zir punishment can be given on the basis of
a woman’s testimony, then this only means that the crime stands proven
in their eyes. But then the question arises: If the crime stands proven,
then why can’t a Hadd
punishment be given? And if they contend that
if a woman’s testimony always leaves room for doubt then a crime cannot
be considered to be proven; so on what basis should the Ta‘zir punishment
be administered?
A crime, obviously, cannot be regarded
to be proven ten, twenty, ninety or ninety nine percent. It is either proven
one hundred percent or not proven at all. Consequently, it is absolutely
baseless to accept a state between proof and lack of proof in a crime and
in no way can it be accepted that a Hadd punishment will be administered
on certain grounds and Ta‘zir punishment on certain other grounds.
No doubt that the nature of the crime and the circumstances of the criminal
do have a bearing on the extent of punishment that is to be given. However,
to imply that the ‘extent’ of proof forms a basis for punishment is something
common sense totally rejects and human nature completely discards.
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