TYPES OF SHAHADAH
Information given to court and it can be
SYAHADAH AL HISBAH
1. Al Hisbah means to do something
with an expectation to get reward
from Allah.
2. It is when a person giving
shahadah comes forward to give
shahadah even the claim is yet to be
made or being asked for the sake of
Allah.
3. Sometime the person who give
the syahadah also the prosecutor or
the claimant. (e.g.) in khalwat
cases, the arresting officer sometime
becomes P.O.
4. Dr Abd. Karim Zaidan states that
shahadah hisbah is admissible in
case relating to right of Allah,
consumption of liqour, theft,
robbeery, zakat , to free slaves, will
or wakaf, maslahah al aammah i.e.
talaq, rujuk.
CONDITIONS OF SAS:
1.The original witness must have a
valid reason for not giving shahadah
personally. E.g. death, sick, missing,
custody
Abu Yusuf: SAS is also applicable
eventhough the original witness is
capable of giving shahadah
personally.
As for missing person, jurist differs
as to distance. I.e. not less than 3
dayas journey or 2 marhalah.
2. Both witnesses must fulfill
conditions of giving shahadah and
tazkiyyah may be carried out if the
credibility is not known.
3. The substitute witness shopuld
specified the nama, adress of the
original witness.This is for purpose
of tazkiyyah of orginal witness.
Some juritst statest it is permissible
that substitute witness statest that
originbal witness is adil or admits it.
4. The original witness cannot deny
that he had requested the substitute
witness to testify.
NUMBER OF SUBSTITUTE
WITNESS
Bahansi: the number of the
substitute witness must be more
than the number of original witness.
This to ascertain quality and toavoid
ambuguity which might arise and
further for necessity & istihsan.
KHABAR
SYAHADAH `ALAL SHAHADAH
(Testimony upon testimony)
It is an evidence given by a witness stating that
someone else has attested to the material facts, or
right which is the cause of the present action.
Therefore , there are two elements for shahadah
ala shahadah:
(a) original witness who actually saw the
material fact
(b) substituted witness- the person who
replaces the original witness to give
evidence in court.
The admisibility of this type of shahadah is not
mentioned in Qur`an or Sunnah but according to
Jurists it is admisibile based on istihsan.
(a) Hanafi accepts base on istihsan
(b) Syafie/Maliki Hambali base on neccesity .
e.g. if the original witness is incapable of giving
evidence due to death, sickness, missing or under
enimies custody can give shahadah ala shahadah.
Types of SAS:
Ahmad Fath Bahansi states that there 2 types of
shahadah ala shahadah:
(a) the substitute witness is requested by the
original witness to give evidence oh=n his
behalf.This occurs when the original witness
says:”Be witness on my testimony that I
testify that I saw … or I had….”
(b) The substitute witness give shahadah in
front of the judge that he heard the original
witness testify in court as suc and such. He
give this shahadah w/out request.
Applicabilityof SAS:
1. It is Unaniimosusly agreed that shahadah ala
shahadah is applicable in all Mal cases.
2. Views On Hudud and Qisas Cases:
Hambali/Hanifah: SAS is not applicable in hudud
and qisas cases becox:
(a) hudud & qisas cases must be established in the
state of yakin (certainty)
-in SAS there is room for forgetfulness, mistake
and false testimony
-by analogy to the retraction of Iqrar whereby no
hadd punishment is imposed.
(b) The prefered opinion that to conceal aib of
another is encourage
(c) since SAS is admisibile based on istihsan and
no clear text from Q & S , it cannot be made
admisible in hudud & qisas which is established by
Q & S.
Maliki & Abu Thaur: SAS is admisbile in all cases
including hudud and qqisas becox
(a) since these cases can be established through
shahadah of original witness, t/fore it can be
established through substitute witness.
(b) they also make analogy of SAS to the words of
intepreter.
Syafie: He differiantiate between right of Allah
and Right of Man.
(a)If Rights of Man (e.g. qisas) than SAS is
aaceptable.
(b) If right of Allah involves:
(i) cannot be admisbile becox different from right
of man whereby in right of man there is neccesity
but in Right of Allah there is no nessesity.
(ii)It is admissi ble (in hudud and qisas) except in
cases punishable by stonning (zina).Becox
normally the person who saw the zina is the first
one to stone.
3. T`zir Cases: Jurist agreed that SAS is
admissible.
SYAHADAH BIL TASAAMU`
(Shahadah based on public opinion)
Some jurist considered this as hearsay
evidence.
Hearsay evidence is giving evidence
infront of a judge based on a fact which is
widely spread and well-known w/out
seeing/hearing the facts with his own
sensed.
It is a kind of evidence which reach the
status of shahadah and not khabar becox
there is expression of “ashadu”.
CONDITIONS:
1. The news must be well-known
2. The news is widely spread among the
community
3. Received by way of
mutawatir.According to al Kashaf it is not
a condition that the news must reached by
way of mutawatir.Becox it is difficult rto
reach mutawatir. It is sufficient l male and
2 women witness or 2 male.
AUTHORITY:
This type of shahadah is based on istihsan
and necessity.Qur`an and Hadith does not
mention this.
APPLICABILITY:
It is acceptable only in certain cases :
Maliki: appointment kadi, wali , wakil,
establsihed nasab/paternity, suckling,
foisterage, transaction,hadiah and will.
Syafie: paternity, death, wakaf,
marriage,ownership
Not applicable to Hudud and Qisas Cases.
CASES FOR SHAHADAH:
Fathilal v Mohd Ghaffar
Wife apply for ta`lik. She brought 2
witnesses .The husband did not appear
and missing. So court order wife to take
yamin istizhar .Kadi confim the divorce.
Siti Zainab v Mohd Ishak
Wife applif for taa`lik. She brought 2
witnesses and additonal two witnesses
and yamin istizhar. Ct granted talaq.
Bolkiah v Mydin
Taa`lik case. In this case court rejected
the application by wife becox one of her
witness contradict her evidence that she
had went out of house.
Salleh Mawagam v Annuar
Wife apply for ta`lik. Husband claim she
was nushsus but no proof. Court:
Peg. Pendakwa Maiz v Hj. Adib Datuk Said
Besar Sigoh.
OKT was charged for commiting zina with
a woman. She had made a complaint to
Kadi that she had sex with him. She was
convicted.In this case the only evidence is
the Iqrar made by OKT to I.O and the
shahadah of the woman. During the trial
OKT denied he had sex.
The court rejected both the evidence
becox:
(a) the Iqrar was retracted by OKT
(b) the Iqrara by co accused is not
binding OKT.
divided into three types:
(a) Khabar Mutawattir
Information given by numerous informant
and effect which preclude the possibility that
everybody is lying.
Ibn Qayyim:
Judge can decide based on khabar
mutawattir even the informant is unjuct
person or non Muslim.This is the clearest and
strongest forms of evidence
Here no need to examine the credebility of
informant.
Evidence gathered by way of khabar
mutawatir can reached the level of yakin, but
tetsimony of 2 witnesses may only reached
the level of ghalabah al-zan or suspicion.
Whether hadd punshiment can be imposed
for zina case based on khabar mutawattir.
The answer is, since zina cases need 4 male
adil witnesses, so it is unsusual khabar
mutawatir can applicable.Unless the zina is
committed in public, and the authority is
imformed of it, then can imposed hadd
punishement.
(b) Khabar Mashor (istifadah)
It is of a lower standard than khabar
mutawattir.
This khabar is information known to public
and spread through mouth.It ranks between
khabar mutawatir and khabar ahad.
It is considered as one of the clearest form of
evidence
Khabar mashor can be admissible in instance
(a) where husband has to rely on it to be a
basis for acusing his wife for zina and the
process of lian.
(b) it is permissible for judge to rely on it
when passing sentece.
In Hudud and Qisas cases it is the discretion
of judge whether to accept of deny it.If he
accept he must apply extreme xcaution.
Khabar mashur can strengthen a proof in
qarinah.
(C) Khabar Ahad
A form of evidence which is based on a single
person knowledge.It is open to suspicion as
to its authenticity but may not be
necessarily inaccurate so as to render it
invalid.
In Qayyim:
Khabar ahad is information received from
someone being trusthworthy. In this case
judge will base judgement as an observation
of the witness` demenaour and he will
decide according to qarinah found in the
case.
So khabar ahad must be strengthenn with
qarinah.
Conclusion:
Khabar is not shahadah unless used the
expression “ashadu”
No provision in Enactment as to 3 types of
Khabar but s. 103 is saving clause.