ISLAMIC LAW OF EVIDENCE IN ISLAMIC JURISPRUDENCE:

Shows the legal concept through this book

Introduction

     Islamic Law of Evidence in Islamic Jurisprudence is the available facts or information that can prove the belief or proposition true or false. In other words, the evidence is the factual material that leads to finding out the actual track of truth. The Law of evidence is provided the mechanism to encompass the rules to govern the proof of facts in legal proceedings. The Law of evidence provides the rules and procedures in which oral and written testimony is adduced. The Islamic law of evidence also encompasses the rules and procedures to provide justice, as on the basis of evidence someone can be guilty or not. Actually evidence is the base to deem someone guilty of the crime, on the behalf of evidence it will be decided that someone is guilty or not. The Islamic law of evidence in Islamic Jurisprudence not only collects the actual facts but also test the witnesses, Islamic law of evidence specifically figurative to get actual results and the competency of the witnesses not only in the Islamic Civil Law but also in Islamic Criminal Law.

There are four kinds of evidence according to the Islamic law of evidence;

  1. Confession
  2. Direct Evidence
  3. Oath
  4. Circumstantial Evidence

Confession

     Confession means formally acceptance or admission that one is guilty of the crime and having sorry for that from the cure of his/her heart. If someone is accepting or admitting his/her criminal act then there is no need to prove that criminal act. Confession is very important evidence if this confession statement should be the willingness of the accused and should be free from any pressure, influence, prejudice, or greed.  

For “Confession” to be considered as evidence, the following things are very important.

  1. A person who makes confession should be major, adult, mature, and independent.
  2. There should be no conditional confession.
  3. The confession cannot be on the death bed.
  4. Separate confessions should be made for different matters.
  5. The confession should not go against the obvious/plain circumstances.
  6. Once a confession is made, it cannot be taken back, because in that case, it is not effective.

Direct Evidence

     Direct evidence means any act, thing, statement, or and thread that belongs or leads to prove the commission or omission of under discussion matter is called direct evidence. Direct evidence is a very important kind of evidence. Direct evidence is essential when there is no confession. Direct evidence is given by the witnesses in a particular case is of the following types.

  1. Evidence by an Eye witness.
  2. Evidence by someone who has heard from someone else.
  3. Evidence was given on behalf of somebody else who is incapable of giving evidence due to any reason.

Direct evidence can be given either in writing or orally but a witness can refresh the memory. The original relevant document or the eyewitnesses should be considered primary evidence, whereas, the hear-say evidence is called secondary evidence.

Oath   

     In the absence of the confession or direct evidence, evidence on oath can be taken before Qazi.  If the complaint has no second witness, he can take on oath in the absence of a second witness.

An oath can be taken by a respondent/defendant when the claim is not proved by the claimant. If the respondent/defendant refuses to say something on oath, a decision can be made against him. If the respondent/defendant takes an oath then the suit can be dismissed.  

The oath can be taken in all cases except Hudood, Lion, and Qisas cases. Again oath is to be taken in a meeting, where Qazi shall ask him three times to take the oath.

Circumstantial Evidence

     It is a very weak source of evidence in Islamic law of evidence because physical and local conditions should be considered while recording/collecting the evidence. Circumstantial evidence cannot be trusted but it can be used to approach a correct decision, it can lead to connecting the missing links. For example, bad smell from the mouth of someone who is in a drunkard state may be as evidence of drinking.  

If the stolen property is recovered from a thief, “Hadd” can be imposed. In medical jurisprudence fingerprints and handwriting expert’s opinions are acceptable as circumstantial evidence. However, circumstantial evidence should be carefully used, since so many explanations to need to apply the evidence in such a situation.

In the case of Zina, four witnesses are required. However, strong circumstantial evidence can be acted upon, for example, pregnancy of unmarried woman, the birth of a child before the expiry of six months after marriage.

Tazkiyat- Ush- Shahood (Credibility of the Witness)

     Tazkiyat Ush Shahood means that “witnesses” who appears before the court, the court should inquire about the background regarding social and moral character.  Firstly these inquiries are made openly and then secretly. The conditions are as following

  1. That the witness should be clean from deeds which attract Hadd punishment.
  2. The Qazi should be free from sins.
  3. The Qazi should be satisfied with the witness (about his being Adil and free from sins) before his evidence is taken.

Conclusion

     To conclude, we can say that the Islamic law of evidence in Islamic Jurisprudence has its own system of rules through the sources of Islamic law, procedures, and punishments. The Islamic law of evidence follows the proper mechanism which encompasses the whole law of evidence to prove someone guilty or innocent. According to the Islamic law of evidence, nobody can be punished if he/she is innocent, and nobody can be unpunished if he/she is the wrongdoer.

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