Final Assignment | Evidence (Law) | Sharia

SP5304 ISLAMIC LAW OF EVIDENCE Semester 2 - 2010

QARINAH (CIRSUMSTANTIAL EVIDENCE)

Student's Name: Dk Hjh. Hana Molina binti Pg. Hj. Mohammad Registration No. :09d0006

Lecturer's Name: Dr. Abdurrahman Raden Aji Haqiqi

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A. The Position of Qarinah in Hudud and Qisas cases The Roles of Qarinah and its Application Syari’ah Court Case in Malaysia Syari’ah Court Cases in Brunei Conclusion Bibliography PAGE 3-4 4-5 5-6 6-8 8-10 11 11-13 13-14 14 15 2 . Al-Sunnah and the Practice of the Companions of the Prophet S.W.TABLE OF CONTENTS CHAPTER TOPIC 1 Introduction 2 3 4 5 6 7 8 9 10 Definition of Qarinah Position of Qarinah as a tool of proof Authorities of Qarinah: Al-Qur'an.

that is nearer to righteousness. as witnesses for Allah. and do not let the hatred of the others prevent you from being just. even if it be against yourselves or parents and relatives. lest you not be just. mercy. stand out firmly for Allah. Whether one is rich or poor. is a ruling that does not belong to the Shariah. 1 Shamsuddin Ibn al-Qayyim. Thus. the crimes and rights with regard to their proof have been classified in 2 categories: i. mercy with its opposite. 1973 3 . And if you distort [your testimony] or refuse [to give it]. justice is all important: In Surah Al-Maidah (5) verse 8: “O you who have believed. Shahadah (Testimony). In legal proceedings. ed. So follow not [personal] inclination. any ruling that replaces justice with injustice. Hudud and Qisas ii. Beirut: Dar Al-Jeel. Rayu al-Khabir (Evidence by Expert). even if it is against the interests of the person testifying or against the interests of his family and friends: In Surah An-Nisa (4) verse 135: "O you who have believed. as witnesses in justice. for Allah is well-Acquainted with what you do. Allah is more worthy of both. or wisdom with nonsense. Shariah is all about justice. common good with mischief. indeed. There are many verses in the Al-Qur'an which attest to the importance of justice in legal and other matters. Taha Abdul Rauf Saad.” In Islam.INTRODUCTION “Islamic Law is based on wisdom and achieving people's welfare in this life and the afterlife. then indeed Allah is well acquainted with what you do" In relation to the principle of justice. and good. the Criminal Law of Islam.”1 Both the Al-Qur'an and the Sunnah of the Prophet (pbuh) repeatedly demand justice and condemn injustice. And fear Allah. evidence must be given without bias. Be just. According to Islamic Law. even if it is claimed to be so according to some interpretations. has laid great stress on the law of evidence in any trial or legal adjudication to prove the facts relevant for the judgement of the court because a conviction can only be obtained if the most stringent evidential requirements are met. Qarinah (Circumstantial Evidence). Al-Yamin (Oath) and Ibnu al-Qadi (Knowledge of the Qazi). wisdom. I`lam Al-Muwaqi`een. be persistently standing firm for justice. Ta'zir and rights These crimes or rights are generally proved by the following ways namely Iqrar (Admission).

hlm 142. hlm. 336 . Example: A man comes out of a house with fear holding a bloodstained knife in hand. Based on circumstances. acts or omissions which proves the existence or non-existence of another thing.3 In terms of law. 2 Ibn Manzur. association. hlm. Abu al-Fadl Jamaludin Muhammad B Mukram. 107 . linkage or indication. it is therefore clear that qarinah is something which shows a certain meaning. hlm 142. Siti Zalikhah Mohd Nor. relation. qarinah is divided into two types: a) Qarinah maqaliah / lafziyyah – based on words (metaphor) Example : Meaning : “I have seen a flower writing” “A flower” means “someone who is a pretty woman as a flower is writing” b) Qarinah haliyyah / ma’nawiyyah – based on the surrounding and circumstances Example : Meaning : A man who says to his friend about to leave for voyage. there was a man inside the house with his throat slit. there is no doubt that the man who left the house was the murderer even though no witnesses to testify they saw the man committed the crime! According to jurists (ulama). circumstances. circumstances and etc. 4 section 7 . 4 .2 Based on the Arabic word. Prof Anwarullah (1999) Principles of Evidence In Islam. Lisan al-Arab. DEFINITION OF QARINAH (CIRCUMSTANTIAL EVIDENCE) Literally. It is also called presumption which means a conclusion or inference as to truth of some fact in question.19. et al (2006) – Al Syariah Undang-Undang Keterangan Islam. Based on the abovesaid examples. surroundings.The aim of this assignment is to raise issues in relation to qarinah as one of the ways of proving in Islamic Law by defining qarinah and subsequently discussion in relation to the sources which accept and reject its usage in Islamic Law as well as explaining the position of qarinah in Hudud and Qisas cases. upon investigation. According to the definition in the Syariah Courts Evidence Order 20014 Brunei Darussalam. hlm. whether in the form of words. Jilid 6. Chapter II of Syariah Courts Evidence Order 2001. Siti Zalikhah Mohd Nor. 644 . qarinah means every clear indication which shows something hidden. “May Allah protect you" The words in this situation are spoken in an atmosphere where speaker expresses his wish that he could accompany his friend on the voyage. it is the logical inference drawn from words. 3 Wahbah al-Zuhailiy (1989) Al-Fiqh Islami wa Adillatuhu. qarinah which comes from the Arabic word al-muqaranah means connection. The current cases in the Syariah Courts of Malaysia and Brunei will also be discussed to explain the role of qarinah and its application as a way of proving in Islamic Laws. et al (2006) – Al Syariah Undang-Undang Keterangan Islam.

The term 'thing’ that can be used as proof must be given a general meaning so that it would include things that could be seen. As such. Qarinah which is strong or yaqin does not necessarily mean a yaqin which is beyond any reasonable doubt because such certainty can only be attained through iqrar or syahadah evidence only which is subject to necessary conditions. Beirut Lebanon: Resalah Publisher. to be acceptable. 137.qarinah is fact connected with the other in any of the ways referred to in Hukum Syara’ or in the provisions of this Order” With this. qarinah as a means of proof needs to reach a degree of strong suspicion (al-zan al-ghalib) as certainty cannot be displaced 5 Wahbah al-Zuhailiy (1989). qarinah is ammarah which must reach status of ‘yaqin’ that is reliable and free from any reasonable doubt. felt. p. Mahmud Saedon A. has accomodated presumption in section 1741: “A strong presumption proof is an inference which attains the degree of positive knowledge” What is meant by yaqin here is that qarinah should reach the degree of strong suspicion (al-zan alghalib) and not yaqin qat’i. qarinah should attain the standard of 'yaqin' to be used as one of the means of proof. Only iqrar and shahadah can be accepted as evidence in hudud and qisas cases because both of the evidence (baiyinah) are considered as to reach the degree of certainity (yaqin). not all qarinah can be easily accepted as sufficient evidence. 7 As stated in the Majallah al-Ahkam al-Adliyyah. touched and others. the definition of qarinah is wide as it include any facts in any forms which can be accepted as one of the evidence to prove an offence. The punishment of hudud and qisas need to be withdrawn if there is a slight doubt existing in the evidence brought forward. Qarinah can be divided into 3 types based on the level of acceptance: a) b) c) Qarinah which is Strong and Conclusive . Othman (1990). 2000. According to jurists. a codified law of the Ottoman Empire of Turkey. however. heard.rejected Qarinah which is Doubtful . 5 .judge will have to admit it Qarinah which is Weak . Undang-Undang Keterangan Islam. However. 6 'Abdul Karim Zaidan. hlm.6 This means that Qarinah may establish the existence or non-existence of a thing. Nizam Al-Qada Fi Al-Shari'ah Al-Islamiah.185 7 Dr. ibid.determined by the court Even though qarinah generally can be accepted by the court by its definition.5 POSITION OF QARINAH AS A TOOL OF PROOF The meaning of Qarinah in technical sense according to 'Abdul Karim Zaidan is indeed wide and all embracing as it covers anything which may be used as proof or evidence to establish the existence or non-existence of a thing.

1993. it is Allah (alone) whose help can be sought" According to al-Qurtubi in his commentary.s. AL-SUNNAH AND THE PRACTICE OF THE COMPANIONS OF THE PROPHET S.by doubt and this is important to proof whether a person is guilty of an offence. AUTHORITIES OF QARINAH: AL-QUR'AN. as evidence that Yusuf a.s. The parties are allowed to submit as much evidence as they like but it is up to court to weigh the evidence presented by both parties to accept or reject it totally or partially. 9 'Abdul Karim Zaidan. said. Ahmad Abdul Munim. but your minds have made up a tale (that may have pass) with you.s. Authorities from the Al-Qur’an a) Allah SWT says in Surah Yusuf (12) Verse 18: "And they came with false blood on his (Yusuf's) shirt. such as usimg circumstantial evidence of qasamah and others.) have treated the blood stained shirt of Yusuf a.s.A. the ulama are unanimous in their view that Prophet Yaa'qub alaihi salam (a. Their proof for admitting qarinah as a type of evidence is based on the Al-Qur’an. 6 .s.W. had asked Yusuf's brothers "When did the wolves became so clever that they could eat Yusuf a. AlSunnah and the Practices of the Companions. Al-Sunnah and the Practices of the Companions. without tearing open his shirt?"9 8 Al-Bahai. For me.really attacked by wolves as claimed by his brothers confidently. Yaa'qub. The court shall accept only such qarinah which is strong and conclusive. He. They have accepted qarinah as one of the means of proof in judicial proceedings while there are also other 'ulama who have rejected qarinah. The jurists rely only on strong qarinah and accept it as sufficient evidence for the relevant fact. page 73. when he saw that it [the shirt] was undamaged and realised that they were lying: ‘Nay. patience is most fitting:Against that which ye assert. Prinsip-prinsip Pendakwaan dan Pembuktian Dalam Sistem Kehakiman Islam. Min Turuq al-Ithbat fi al-Shariah wa al-Qanun. The authorities that relate with qarinah in convicting a crime and establishing a claim is as followed: 1. The majorities who have accepted qarinah are those from the four main schools of law (the four mazhabs). in one narration it was said that the Prophet Ya'qub a. The majority of the 'ulama (jurists) accepted qarinah as one of means of proof based on the AlQur’an.8 The qarinah must be of strong nature because presumptive evidence usually carries with it an element of doubt. is still alive as the shirt though blood stained is still not torn a sit should be if Yusuf alaihi a. In this concept. the jurists have employed this ayat as justification for using "signs which points to the existence of something' in solving fiqh problems.s. Rather to this ayat.

b) Narrated Zaid bin Khalid Al-Juhani: A bedouin went to the Rasulullah SAW and asked him about picking up a lost thing. had resorted to qarinah as a means of proving that the allegations by the brothers of Yusuf a. By Sahih Bukhari: Lost Things Found by Another Person (Luqaata) 7 .”10 According to this hadith. are false.s. Zaini Nasohah. et al (2006) – Al Syariah Undang-Undang Keterangan Islam. hlm 145. then she speaks truth and he is of the liars. the fact the blood stained shirt was not torn clearly raises a doubt on the allegations by Yusuf’s brothers. the two sons of Afra claimed that they have killed Abu Jahal. she cried out :What punishment does one deserve who show evil intentions to your wife? What else than that he should be put in prison or tortured with painful torment. he said “You have killed him.’ The fact that Yusuf’s shirt was torn from the back shows that it is a qarinah (circumstantial evidence) leading to the conclusion that Yusuf SAW did not try to molest Zulaikhah. hlm. it is clearly shown that the cirsumstantial evidence was applied before Rasullulah SAW makes a decision. b) In other verses (ayat) in the Al-Qur'an. the nobleman can decide who was in the right side. Seeing him. Al-Qarinah .”At this a witness of her own folk testified ‘if his shirt is torn from front. Remember the description of its container and the string with which it is tied. otherwise.s. Allah SWT says in Surah Yusuf (12) Verse 2528: “At last Yusuf and she raced towards the door one behind the other and she tore his shirt (pulled it) from behind and then met her husband at the door. In this case. (give it to him).The witnesses as Allah said in Yusuf a. 2."11 Selangor: Penerbitan Hizbi p. wife of the nobleman. 10 Ahmad bin Hanbal (1992) Al-Musnad Jilid 3.” Rasullulah SAW said: “Show me your swords”. showed that qarinah is resorted to and applicable in establishing a claim and convicting a crime.When Rasullulah SAW saw the swords being bloodstained. 11 Volume 3. utilize it. Number 609: The Hadith Of Muhammed. Book 42. So. And if his shirt is torn from behind then she tells a lie and he is of the truthful. 154. Siti Zalikhah Mohd Nor. Rasulullah SAW said. and if somebody comes and claims it and describes it correctly. "Make public announcement about it for one year. Authorities from the Al-Sunnah a) It has been related that in the battle of Badar. 212 .s. story is clearly showed that the Prophet Yaa'qub a. Rasullulah SAW said to them: “Have you cleaned your swords?” They said “No.

” So Caliph Umar imposed hudud penalty on him. In order to have him convicted. these jurists have relied on this hadith Rasulullah SAW related by Ibn Majah: “Were I to stone (rejam) anyone without evidence. However. the above authorities illustrate that: (1) expert evidence can be supported by observation and analysis of circumstantial evidence (qarinah). called upon a female to exmaine the alleged victim and received an opinion that the substance found was indeed sperm. recealed that the substance (solidified due to heat) was in fact egg white! The man was acquitted. They asked Rasulullah SAW: How her (virgin's) consent can be solicited? Rasulullah SAW said: That she keeps silence. c) During the time of Caliph Umar. as in Yusuf's case. in deciding the matter. who poured boiling water on the dress.W. Book 008. I would have stoned so and so (fulanah). a) Caliph Umar said “Rejam (stoning to death-hudud penalty) is imposed on the commission of zina by a married man and woman when it is proved by confession. hoping to give an impression that the substance was a male semen. The Caliph. (2) physical examination. He enquired about him and was told that he is intoxicated. testimony or there is pregnancy (in case of an unmarried woman) and the woman does not claim coercion based on Qarinah. she poured egg white on her dress and between her legs.A. a woman falsely accused a man of rape. The Hanafis and Shafi'is and with one excepetion Hanbalis reject the use of presumption in hudud and qisas.c) Abu Hurairah (Allah be pleased with him) reported Allah's Messenger Rasulullah SAW as having said: "A woman without a husband (or divorced or a widow) must not be married until she is consulted. allowing only witnesses and confession as evidence. as well as laboratory test are allowed 8 .13 THE POSITION OF QARINAH IN HUDUD AND QISAS CASES There are some 'ulama (jurists) who have rejected qarinah stating that qarinah as a means of proof is not fixed and not a reliable form of evidence. The Practice of the Companions of the Prophet S. upon consulting Sayyidina Ali. appearance and cohabitation are such which raise 12 (Translation of Sahih Muslim. and a virgin must not be married until her permission is sought. for her speech. The Book of Marriage (Kitab Al-Nikah). Number 3303) 13 In essence. b) It has been related on the authority of Saib bin Yazid who said: “Umar smelled the odour of wine from a person. According to Ahmad Abdul Muniem al-Bahai. 12 3.

According to mazhab Maliki. it is sufficient proof for hadd penalty provided there is no sign of coercion on her body and she is a local and not stranger. 15 Wati’ syubhah atau persetubuhan yang meragukan ialah persetubuhan yang berlaku antara seorang lelaki dengan seorang perempuan atas dasar keyakinan bahawa perkahwinan mereka itu sah sedangkan pada hakikatnya ianya tidak sah atau dasar keyakinan bahawa perempuan itu adalah isterinya sedangkan pada hakikatnya tidak. However. Othman (1990).16 b) Theft: Stolen property in possession of the accused who denied stealing the property The jurists (ulama) are unanimous that theft can be proved through iqrar or bayyinah. Hudud Cases There are also some jurists who are of the view that qarinah is exempted in hudud cases because hudud law is solely Allah's rights. it is not sufficient proof for hadd penalty and at the most it is liable to ta’zir provided such woman was not coerced (forced). according to some ulama. iaitu ia baru datang secara mengejut. there are jurists who are of the view that qarinah is permitted widely without restrictions in all cases including hudud and qisas cases. the jurists have different views: a) Zina: Pregnancy of an unmarried woman According to Mazhab Hanafi. This is the preferred view among the jurists. However. In relation to qarinah as means of proving hudud cases. 1. Mahmud Saedon A. theft. boleh diterima kenyataannya kerana didapati syubhah (keraguan)dan kehamilan perempuan itu tidak boleh dijadikan bukti yang kukuh untuk mensabitkan hukuman hudud keatasnya. hlm. hadd punishment can be imposed because such a fact is a stronger qarinah than confession or testimony (iqrar). According to Ibn Qayyim. According to Mazhab Hanbali. ibid.suspicion”14 This reinforces the rule that doubt nullifies hudd.. Shafi’i & Hanbali. hadd punishment for theft can be imposed in abscence of satisfactory explanation. 144. Pregnancy can occur as a result of wati’ syubhah15 (doubtful sex) or because she was raped. hadd punishment cannot be imposed because accused denials raise uncertainties. 16 Jika perempuan itu tidak bermukim. Jurists however concur that hudud cases such as zina. it cannot be the basis for judgement in hudud which are removed by doubts. Since a presumption is always doubtful. 9 . drinking alcohol and qazaf can be proven by using iqrar and shahadah. Hence Rasullulah SAW refused to implement hadd punishment on the person based on qarinah. c) Drinking Alcohol: odour of alcohol in his mouth or vomit -‘can the smell of liquor 14 Dr.

17 Based on this. concur that ta'zir punishment can be given in a murder or hurt case on circumstantial evidence. et al. hlm. Qisas Cases According to the majority of the jurists including the school of mazhab Hanafi. The accused person may have been forced to drink alcohol or drunk it by mistake. 113 . 97-98 . Maliki and Hanbali jurists opine that the punishment of death qisas can aso be given to the accused in a murder case on circumstantial evidence if it reaches to the degree of certainty. hlm. which will entitle the family of the victim to demand the process of qasamah. they are of the view that a murder can be proven by way of qarinah. the majority of jurists require for the relatives of the deceased to take fifty oaths stating that the accused has murdered the victim. Rahman. ibid. "Acara Keterangan Dalam Pembuktian Ke Pembunuhan Dan Kecederaan". According to fiqh jurists of the four schools (four mazhabs). Siti Zalikhah Mohd Nor. According to Ibn Al-Qayyim. 2. hadd punishment imposed is based on zahir qarinah. no hadd punishment imposed because mere odour or vomit is not a definite and strong presumption. 10 . qarinah is not accepted as one of the ways to prove qisas cases which does not involve a person's life. the accused in such case may be given the punishment of death as ta'zir. 154.from the accused’s mouth be used as evidence against him/ what if liquor was found in his vomit?’ According to Mazhab Hanafi & Shafi’i. 397 18 Prof. Dr. but qarinah however may be lauth (circumstantial evidence). et al. hlm 154 19 Ahmad Abdul Mun’im al-Baha’iy (1965).19 17 Dr. whereas qarinah is accepted for qisas cases which involves a person's life. however. However according to Mazhab Maliki & Hanbali. Anwarullah (1999). ibid. Tinjaun Kepada Perundangan Islam. Eventhough there is a difference in opinion whether qisas in a a murder or hurt case is proved by presumption (circumstantial evidence) or not. The general rule in judgement of criminal cases can be proven through iqrar or shahadah. Mazhab Hanafi. 2000. Kuala Lumpur: Institut Kefahaman Islam Malaysia (IKIM) p. Principles of Evidence In Islam. hlm. The issue here is whether qarinah could also be used as one of the means of proving murder.18 Some jurists opine that if circumstantial evidence in a murder case reaches to the degree of certainty. the jurists. Mat Saad Abd. qarinah is one of the means of proof in murder cases and in qisas as accepted in hudud cases and others. Min Turuq al-Ithbat fi al-Shariah wa fi al-Qanun. Siti Zalikhah Mohd Nor.

2. condition and circumstances in relation to the case in which iqrar had been given. but it can be admitted by the court only to the stage of qarinah. DNA tests is a technique which is always used in a civil court and accepted to be use by the syariah court as well to prove the offence.Background. 11 . 23. yamin and iqrar. Sometimes a crime cannot be proved through the ways which had been agreed by the jurists such as iqrar and shahadah. The accused would obviously escape from any punishment in which there are no evidence of confession from the accused or any witnesses. Problems related to the conditions of a witness. He claimed that he had no 20 Dr. yamin and iqrar can be accepted and whether it is valid.20 SYARI’AH COURT CASE IN MALAYSIA MUSTAFA BATCHA v HABEEBA (1990) 7 JH 255 Case Background: This is a Negeri Sembilan matrimonial case whereby the husband had allegedly divorced his wife by repeating the talaq 3 times . ibid.“I divorce you” to his wife. 4. hlm. With this. a woman have been raped by a male stranger in the dark. To test how far the evidence which includes shahadah.THE ROLES OF QARINAH AND ITS APPILCATION Qarinah should not be accepted carelessly as its acceptance depends on every case according to its weakness & strengths.. Nik Rahim Nik Wajis (2002). Beneficial and important to a judge so that the punishment he passed is correct and indefinite. to upright justice for the victim and the whole society. Qarinah is important because it could be used to strengthen other forms of evidence such as shahadah and iqrar and could also be used to test the validity of testimonies including shahadah. qarinah is required to prove the offence. Evidence from a person who is not competent to give testimony (kesaksian) can be accepted by the court. the husband blamed his action on sorcery (black magic). 3. When the matter went to court. Qarinah is beneficial and important to a judge so that the punishment he imposed is correct. Mustafa Batcha lwn Habeeba (1990) 7 JH 255 . For example. A child who is not competent as a shahid can give evidence only to the stage of qarinah. Evidence of a wife for his husband’s interest or her son for his father cannot be admissible if it is a testimony. For example: 1.

It was clear to him that the woman was raped and the zina occured not because of her consent but because she had to save herself from starvation. that although sorcery is condemned by Islam. Witnesses had not been called 2. 5. The Learned Kadi did not call any witnesses & did not investigate the husband’s allegation that when he pronounced the divorce he was not in his proper senses and that he was induced to do so by black magic! The husband appealed. The Syariah Appeal Court ordered the case to be retried before another Kadi because of the following reasons: 1. However. 6. she then asked a little milk from the man. The circumstances and conditions of making the statement were not considered. the man agreed to give her the milk with the condition that she surrender herself. It was held on appeal. condition and circumstances where the crime or the case occurred should be analysed and considered by the court. a married woman complained and gave an iqrar that she was pregnant as a result of zina and requested that Caliph Umar to impose the punishment of rejam (stoning) against her. The incident occurred when the woman was too thirsty. case: 79) 12 . Kahirah. The man then raped her. Mere statement (iqrar) of the husband could not be accepted as it was not conclusive. It is the Practice of the Companions that the punishment against an accused can be dropped because of certain reasons after the facts have been reviewed as shown in the following case: During the famine season. she found a man who has milk. Saiyidina Ali reviewed the case and the reasons that led the woman to commit zina before she was sentenced. After hearing the evidence so Saiyidina Ali said: "Allahu Akbar! Whoever in the state of being forced to not want it nor extravagant there is no sin "(Surah Al-Baqarah: 173). No expert evidence was called 4. The Kadi Court held that a divorce by three talaq had been effected (according to Mazhab Shafi’i). the request was turned down three times. al-Turuq al-Hukmiyyah. it was mentioned in the Al-Qur'an in Surah al-Baqarah (2:102). Matba'ah al-Madani. Even though iqrar was made in court but the background. Caliph Umar liberate the woman based on the views of Saiyidina Ali on the grounds of emergency. (Ibn Qayyim al-Jauziah. The court had not considered whether the allegation of the husband that he was under the influence of black magic was true or not 3.intention to divorce his wife but he was under the influence of a magic spell. The trial court disbelieved his defence and refused to hear the evidence on sorcery.

2. SYARI’AH COURT CASES IN BRUNEI CRIMINAL PROSECUTOR v DK SORYANI BTE PG BESAR and MAHHAMAD JIN BIN ROSETA Both the defendants were charged for the offence of illicit intercourse in December 1993 under section 178(4) Religious Council and Kadis Courts Chapter 77. in order to save the life of the woman dying from thirst. They both pleaded guilty. Dr. 1984 Amendment.In this case. In relation to both of the cases mentioned above. the reasons of the law based on the concept of emergency has successfully convince the judge. condition and circumstances of the case must be examined and studied by the court. Saiyidina Ali was defending this woman that although the woman gave an iqrar in front of Caliph Umar. The male defendant was fined $200. analyzed and provided comments by the judge. Caliph Umar who found the woman not guilty even though iqrar had been done in court. This case shows that an iqrar can be received after it has been ascertained that there was no syubhah and that the background. felt iqrar is not received before it was reasonably assured that there was no syubhah.00 or imprisonment of 30 days.00 or imprisonment for about 15 days and the female defendant was also fined $200. Confession from the two defendants (pleaded guilty). CRIMINAL PROSECUTOR v ASARWIH BIN ABDULLAH @ SIANDOK and YUSLIZA BTE YUSOF Both the defendants were charged for the offence of illicit intercourse in December 1997 under section 178(4) Religious Council and Kadis Courts Chapter 77. Both the defendants were fined to $800. but Sayyidina Ali acting as protector. The female defendant gave birth to a child while both the defendants were not husband and wife or not yet married at the relevant time. 1984 Amendment. This fact has been highlighted. The female defendants gave birth to a child in September 1998 while both the defendants were not husband and wife or not yet married at the relevant time. The punishment were imposed on both the defendants based on the two following main evidencs: 1. Nik Rahim Nik Wajis in his articles "Pembuktian Kes Melalui Qarinah: Perbandingan Antara Undang-Undang Islam dan Undang13 . Saiyidina Ali has proved that even though this woman gave an iqrar that she committed zina but the situation in which zina was committed is considered necessary.00 or imprisonment for about 10 days. According to Saiyidina Ali.

A reasonable Zann is a fact which is certain and is not doubtful to the judge (qadi) who relies on a certain fact for a certain case and the certain fact must be suitable with the existent circumstances surrounding it. qarinah is important. the status must be determined. CONCLUSION Qarinah plays an important role in the process of proving and giving evidence in Islamic Law. as it can be used as to suppport.A. for the majority of jurists who accepts qarinah. the role of qarinah cannot be ignored or rejected solely. Even though some jurists reject it. however the accused most probably would not plead guilty without a clear qarinah such as a child born out of wed-lock according to Syarak. Nevertheless. strengthen or test the validity of other baiyyinah such as iqrar and shahadah. The contradicting views amongst the jurists are not the the main question but the differences in interpreting the Prophet S. 14 . if it is strong and conclusive. The evidence have to be considered eventhough it does not fulfil the status of yaqin baiyinnah which binds the court. it must be accepted but if it is weak. qarinah have been accepted by the majority of jurists especially the four jurists (mazhabs) as one of the ways of proof. In this modern world and the increasing complexity of criminal acts.W's hadith.Undang Syariah Negara Brunei Darussalam" gave a comment that eventhough the punishment was made based on the iqrar of the accused. it must be rejected and if it is doubtful. It shall be accepted if it can assist to update the Islamic Laws of Evidence so that it can overcome crimes which are spreading and also to upright justice as well as to strive for human rights. only the strong qarinah is accepted so that there will be no question with regards to qarinah which is weak and doubtful as one of the ways of proof. The important thing is that the judge should consider the status of qarinah as a means of proof. However.

Faridah binti Ab Ghani (March 2004) . Syariah Courts Evidence Order.Is1. Jurnal Undang-Undang Syariah Brunei Darussalam. Jamila Hussain (2004) . Nik Rahim Nik Wajis (2002). 'Abdul Karim Zaidan (1993) .Nizam Al-Qada Fi Al-Shari'ah Al-Islamiah. Haji Sa’id Haji Ibrahim (1996) – Qanun Jinayah Syar’iah & Sistem Kehakiman Dalam Perundangan Islam Berdasarkan Qur’an dan Hadith 5. Selangor: Penerbitan Hizbi 8. Beirut Lebanon: Resalah Publisher 9. Anwarullah (2004) .Islam its Law and Society 2. 2001 (S 63) 11.Prinsip-prinsip Pendakwaan dan Pembuktian Dalam Sistem Kehakiman Islam. Pembuktian Kes Melalui Qarinah Perbandingan Di Antara Undang-Undang Islam dan Undang-Undang Syariah Negara Brunei Darussalam.Othman (1990) – Undang-Undang Keterangan Islam 6.Qarinah: Its Functions in Establishing a Claim and Convicting a Crime 4. Prof. Chapter 77 15 .BIBLIOGRAPHY 1.lamic Law of Evidence 3. Religious Council and Kadis Court Act. Dr. Prof. 7. et al (2006) – Al Syariah Undang-Undang Keterangan Islam 10. Mahmud Saedon A. Siti Zalikhah Mohd Nor. Dr. Dr. 'Abdul Karim Zaidan (2000) .

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