Authenticity and Scope of Circumstantial Evidences in the Perspective of Islamic Law

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AUTHENTICITY AND SCOPE OF CIRCUMSTANTIAL EVIDENCES IN THE PERSPECTIVE OF ISLAMIC LAW

Dr Rashid Ahmad, Assistant Professor, Institute of Islamic and Arabic Studies, University of Peshawar

Dr Hafiz Hifazatullah Assistant Professor, Department of Islamic Theology, Islamia College University, Peshawar

Dr Bad Shah Rahman Assistant Professor, Department of Islamic Theology, Islamia College University, Peshawar

Abstract It is an established fact that only those societies flourish where justice prevails in all walks of life. It is the collective responsibility of every one to strive for establishing of such a society where rule of law carries supreme position. By nature all human beings are not equal, and disputes of civil and criminal nature arise amongst them. To resolve it justice is sought in the courts. All kinds of courts rely on evidences, and so is the case of Islamic Legal system. The Law of Evidence in Islam is based on Testimony, Confession or admission, Oath and Circumstantial Evidences. The former three are direct means of proof, while Circumstantial Evidence is the indirect one but has great importance in the dispensation of justice because many cases do not prove on the bases of direct proofs due to one reason or another and the court has to rely on circumstantial evidence as it makes linkage among the events. Muslim jurists have discussed Circumstantial Evidence in detail. Its scope has been elaborated, all of them agree that Circumstantial Evidence is acceptable in civil rights and for inflicting ta,aziri punishment. While they differ in its validity in hudud and Qisas crimes. Majority of them are of the opinion that hudud and Qisas are the extreme punishments and need great precaution in its implementation and execution, so on the basis of circumstantial Evidences Ta,aziri punishments may be given but no hadd and Capital punishment would be inflicted in the absences of direct means of proof. This article will elaborate all these concepts. Key words: Authenticity, Circumstantial Evidences, Islamic Law, disputes, Criminal Cases, Ta, azirat Introduction: In the present day time the whole world is crying for justice. In Islamic perspective the concept of justice encompasses the whole of life. It is the responsibility of every citizen to strive for establishing a just society. It is also a fact that all human beings are not of the same nature. Many of them have much concern about the right of others, but still there are many who are oppressors in one form or in other . When disputes arise amongst them then a court decides the matter according to the merits and demerits of a case. Law of Evidence forms the basic foundation of every judicial system and so is the case of judicial system of Islam. In Islamic Legal system a claim can be proved in a court by four means. 1. Testimony (Al Shahadah): Literally it means to watch, inspect or to present.1 While technically it means “Giving information of what one has witnessed or seen or beheld with his eyes, declaration of what one knows, decisive information.”2 2. Admission or confession (Iqrar): During the proceedings of the court when the defendant admits the claim or make confession of a crime then it is said that Iqrar has been made.3 3. Oath (Yameen) When a plaintiff fails to produce witnesses in support of his/her claim or witnesses are rejected lawfully and the defendant does not make admission then he/she is asked by the court to take Oath. This is called Yameen in Islamic law.4 4. Circumstantial Evidences. Those Evidences which are based on Circumstances are called Circumstantial Evidences.5 Definition: In Arabic the word Qarinah (plural Qara,an) is used for circumstantial Evidence It is derived from the word Qaranah, Which means presumption, conjunction, relating, union, affiliation, association, linkage and indication.6 While its technical meaning is “It is an apparent sign associated with something concealed which may uncover the concealed matter.7

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It is noteworthy that testimony, confession or admission and oath the are direct means of proof while Circumstantial Evidences are presumptive proofs and are inferred from circumstances.8

Authenticity of circumstantial Evidences: Islamic law recognizes circumstantial Evidence as one of the means of proofs. The Holy Quran says “And both raced to the door the woman tore his shirt from behind and both encountered her husband by the door she said ,”No punishment is there of a man who purposes evil in thy house but that he should be thrown in to the prison or painful chastisement. Yusuf said “It was she who desired me, not to hold my self” and a witness of women folk gave witness.” if his shirt is torn frontwards then she is true and he is liar and if his shirt is torn from behind then she is false and he is truthful” Then when Aziz saw his shirt torn from behind, he said “No doubt, this is a guile of a women of course, your guile is great”9 The tearing of the shirt from the front side or the back side is a sign, which proved the purity of the Joseph (PBUH). The jurists inferred from this that decision can be made on the basis of such sign which is clear in its nature.10 The Holy Prophet (P.B.U.H) also showed his consent to the opinion of an Expert. “Aisha (May Allah be pleased with her) narrated: Allah’s Apostle (May Blessing and Peace of Allah Be Upon Him) once entered upon me in a very happy mood, with his features glittering, with joy and said, O Aisha! Do not you see that Mujazziz (An Expert in noticing resemblance between persons belonging to the same linage.) Looked just now at Zaid bin Harisah and Usama bin Zaid and said. “These feet (of Usama an his father) belong to each other.11 It is obvious from the verses of the Holy Quran and the traditions of the Holy Prophet (P.U.B.H) that circumstantial Evidences are valid means of proof, but however it is noteworthy that all of circumstantial Evidences are not of the same category and the jurists have divided it in to two main kinds: 1. Strong presumptions, 2. Weak presumptions. The jurists also agree upon that decisions can be made only on the basis of strong presumption, when there is a very clear linkage among the events.12 Disputes brought in to a court are basically of two types, civil and criminal. Following discussion will elaborate scope of circumstantial evidences in each one of them.

Scope of circumstantial Evidences in civil right disputes: It is agreed upon amongst the jurists that circumstantial Evidences are acceptable in civil rights.13 In Islamic law documentary proofs like written, printed, or inscribed material which gives information are acceptable as Circumstantial Evidences if the judge is satisfied that these documents are free from forgery.14 They also say that all matters pertaining to trade, circumstantial Evidences are as acceptable as other means of proofs.15 For determination of the linage of a person opinion of an expert is also acceptable.16 Scope of Circumstantial Evidences in Criminal Cases: In Islamic law Criminal cases are of three kinds 1. Hadd, 17plural Hudud 2. Qisas18 3. Ta,azir19 There are three different opinions of jurists regarding the validity of circumstantial Evidences in all kinds of criminal cases. According to the Hanafi20 and Shafi21 Schools of thought there is no room for the validity of circumstantial Evidence in cases of Hudud and Qisas. Only Ta,azir can be given on the bases of circumstantial Evidences. They have based their argument on the tradition of the Holy Prophet (P.U.B.H) “Were I stone any one without evidence, I would stone so and so (named a woman), as suspicion has raised due to her way of talking, appearance and cohabitation.22 The second view is that of the maliki23 and Hanbali24 jurists. According to their opinion certain types of circumstantial Evidences are acceptable but not in all cases, for example, drinking may be proved by smell of breath of the accused or on his vomiting alchohal.25 Pregnancy of an unmarried woman is a sufficient proof on her adultery provided she does not claim rape.26 This view is based on the statement of Hazarat Umar, Who said, “Adultery is public (proved) when pregnancy appears (in cases of an Unmarried woman with out being coerced) or confession is made.27

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In this regard the third view is that circumstantial evidences are as valid as other means of proof, the reason is that the Holy Prophet (P.U.B.H) has used the word Byyinah for the proof of a matter which indicates and proves the commission of an offence or Violation of a right whether it be witness or something else like circumstantial evidences, Oath, Document, etc.28 By comparing all these three views, it seems that the first view carries more weight than the two others on the following grounds.

1. Hudud and Qisas are the extreme punishments in Islam and need too much precaution in its execution as the Holy Prophet (Peace Be upon Him) said “it is better for a judge to make mistake in acquitting a culprit, rather to punish an innocent.”29 2. The Holy Prophet (P.B.U.H) said repeal hudud punishments to the extent you can.”30 He also said “repeal Hudud to the existent you find a way for it.”31 3. All kinds of Circumstantial Evidences contain a kind of doubt in their nature, and it is injustice to punish some one having doubt in act of omission or commission. The Holy Prophet (P.U.B.H) said “repeal hudud on the basis of doubts”.32 Scope of circumstantial Evidences in Ta, azirat: It is the unanimous opinion of the jurists that circumstantial evidences are valid for execution of Ta, azirat. In the case of theft, for example, if the stolen property recovered from the possession of an accused, and in the absence of witnesses or confession, it may be returned to the owner, while the judge may punish the culprit according to the strength of the circumstantial evidences. But however, no Hadd punishment would be Implemented.33 Conclusion: The above mentioned discussion shows that circumstantial evidences play an important role in the dispensation of justice. Islamic law has made justice with the topic as it has defined it in very clear terms then it has elaborated its various kinds with its scope in civil as well as criminal cases. Now it is the need of the hour to educate students in the light of the teachings of the Quran and Sunnah in order to enable them to play a positive role in the establishment of a just society.

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Notes: 1. lisan al Arab: 4:54, Islamic law of Evidence: 63. 2. Al Fiqh al Islami wa adillatuhu: 6: 328. 3. Alwaseet Fi Sharh al Qanun al Madani: 2:328, & Al Fiqh ala Mazahib al Arba,a: 4:45. 4. Ibid. 5. Al Qada Fil Islam: 245. 6. Lisan al Arab: 9:234. 7. Al Fifqh al Islami wa Adillatuhu .6:328. 8. Al waseet fi Sharh al Qanun al Madani: 2:328. 9. Al Quran: 12: 25-28. 10. Ahkam al Quran: 2:440, & Al Qurtubi, aljame,a Le Ahkam alQuran: 9:173. 11. Al Sahih al Bukhari: 8:407. 12. Al Fiqh al Islami WA addilatuhu: 6:329, & Abdul Karim, Nizam al Qada Fil Islam: 235. 13. Al Mausah al fiqhiah: Qarinah. 14. Islamic Law of Evidence: 67. 15. Al waseet fi Sharh al Qanun al Madani: 2: 329. 16. Sahih al Bukhari, The book of the Law of Inheritance Chapter: 31. 17. Hadd: Plural (Hudud) .These are the punishments ordained by the Holy Quran and Sunnah or has been fixed through Consensus (Ijma). For detail: AlFiqh al Islami wa Adillatuhu: .6: 256. 18. Qisas: Punishment by causing similar hurt at the same part of the body of convict as he has caused to the victim or by causing his death if he has killed some one intentionally in exercise of the right of the victim or on his behalf a person who is entitled to claim retaliation (Qisas). For detail: Al Tshri al Jinai al Islami: 2:257. 19. Ta,azir:The discretionary power of a judge to punish someone other than Hudud and Qisas. For detail: Al Fiqh al Islami wa Adillatuhu: 6:254. 20. Hanafi or Ahnaf is a school of Thought. Imam Abu Hanifah is the founder of this school. For detail: Al Bidayah wa al Nihayah:10: 107. 21. Shafi is also a school of thought and its Founder is Imam Mohammad Bin Idrees Al shafee (150-304 AH). For Detail: Muajam al Mwalafin: 9:32. 22. Ibn e Maja: The book of hudud, chapter, man azhar al fahishah. 23. Maliki: The Founder of the Malikia School of Thought is Imam Malik BinAnas (93-179 A.H). For detail: Al Bidya wa al Nihaya: 10:174. 24. Hanbali: The Founder of the Hanbali School of Thought is Imam Ahmad Bin Hanbal (164-241 A.H). For detail: Daeratul al Maarif: 2:575. 25. Islamic law of Evidence: 66, & Punishment in Islamic law: A comparative Study: 131. 26. Islamic law of Evidence: 66. 27. Al Tashri al jinai al Islami: 2:339 & Islamic law of Evidence: 66. 28. Al Turaq al Hukmiyyah:.89, & Islamic law of Evidence: 65. 29. Al tirmizi, Al- Sunan, The book of Hudud Chapter: 2. 30. Ibid. 31. Ibne Maja, The book al Hudud, chapter: Al satar alal Mumin. 32. Kanz al Ummal, Kitab al Hudud: Hadith No.12 957. 33. Tabsirat al Hukkam fi usul al aqdhia: 2: 156.

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