ISLAMIC UNIVERSITY IN UGANDA-FEMALES’ CAMPUS

FACULTY OF LAW.

COURSE WORK - ISLAMIC LAW OF EVIDENCE

LECTURER: DR. KASOZI EDIRISA SINAANI

GROUP 7 - LLB III

names reg number

KYOMUHENDO JOWERIA YASIN 421-053011-20655

ABEJA FLORENCE TRACY 421-053011-20474

IKIRING RACHEAL 120-053011-22106

NAKACHWA MARIAM 421-053011-20329

NANSUBUGA ALLEN FLORENCE 421-053011-20834

NABITIIBWA FAUZIAH 421-053011-20288

NAKIRYOWA HADIJAH 421-053011-20588

NAKIGUDDE AMINAH 421-053011-20382

NAKINTU MUNIRAH 421-053011-20385

NAMULEME ANGELLA 421-053011-04478

AKANSASIRA JASHIRA 421-053011-04080

ZAHARA ISSA 421-053011-20480.

NAMBASSA JAMILAH 420-053011-04198

JOINT OATH UNDER ISLAMIC LAW OF EVIDENCE

Evidence is defined in Islam to mean “an evident indication of the commission of an offence
by a certain person.” The holy prophet Muhammed referred to evidence as “Bayyinah” which
means anything that manifests the facts disputed in court. Islam accepts the admission of
evidence to prove a given claim and remove any doubt given that particular scenario or
situation and this is evident under various verses in the holy Qur’an.

Qur’an 2:282 “…. that is more just in the sight of Allah and stronger as evidence and more
likely to prevent doubt between you….” Qur’an 2: 283, “Do not conceal testimony. He who
conceals it, his heart is sinful….”. Prophet Muhammed (P.B.U.H) further said that “if people
were given what they asked when they brought a case, some would claim the lives and
property of others. Thus, this all justifies the rationale and admission of evidence in Islamic
law.

There are different ways through which crimes are proved and the difference is always
brought about by the nature of the crime one is alleged to have committed.

Some crimes are proved with merely testimony (shahadah) from witnesses. A number of
which is stipulated by the sharia (Qur’an and hadith or other sources of Islamic law) for
example; Qur’an 5:38 stipulates two witnesses for theft, and Qur’an 24:4 stipulates four
witnesses for adultery. These witnesses must have observed the alleged crime being
committed by the accused, meaning their evidence must be direct in nature. They must be
liable in nature hence the witnesses must have never been convicted of any major crime in
Islam, must be of mature age with sound mind at the time of the commission and that of
giving testimony. Qur’an 2:282 says “…… and let not the witnesses refuse when they are
called upon……”

Crime in Islam can as well can be proved by confession (Iqrar) of the accused; however, the
confession should be free and independent of any form of duress or coercion. Where the
accused retracts his testimony, it should be considered as no testimony and if it were for a
hudud crime a hudud punishment shall not granted.

Finally, some crimes in Islam are proven by taking an oath (Yamin). An oath is a solemn
declaration or promise, often invoking a divine entity as a witness to the truthfulness of what
is being said or pledged. Oath is normally used to affirm reality and reliability of information.
Similarly, it is used in another occasion to show the seriousness and authenticity of what the
speakers talking about. In Islam, an oath is a solemn pledge made in the name of Allah.

There are different kinds (types) of oaths, typically categorised based on their purpose and the
situations in which they are made.

For example; Lian” refers to a legal procedure in Islamic law where a husband accuses his
wife of adultery and invokes a curse upon himself if he is lying. If the wife denies the
accusation, she also invokes a curse upon herself if she is lying. This process is outlined in
the Quran in Chapter 24, Verses 6-9. If both parties swear oaths, the marriage is dissolved,
and they are considered to have borne false witness if either of them is lying

Just as we see with ‘Lian,’ there is another kind of oath taken in instances where a crime such
as murder has been committed and no one can be pinned or suspected. Where one is killed
near a residential area; in such instances the inhabitants of the residence shall be held liable
and to prove that they know nothing of such happenings they will be required to take 50 oaths
and that is referred to as Joint Oath “Qasamat”

COMPURGATION (AL-QASAMAH)

Compurgation also known as trial by oath simply means the acquittal from a charge or
accusation obtained by statements of innocence given by witnesses under oath. So when
Qasamah occurs, and the accused swears the oath, and is (they are) acquitted, its synonymous
in meaning in the face of it.

“Al-Qasamah” is derived from “al-iqsam” or “taking of an oath” and the verb “Yaqsimu”
means to “take an oath”.

Al-Qasamah is defined to mean the oath taken by 50 men from among the people of the slain
man to refute accusations of homicide where the perpetrator is unknown.

Imam Malik bin Anas ruled to this effect: “So fifty on the men of his people swear fifty oaths.
If there are not fifty men, more oaths can be made by those of them who already swore. If
there is only the defendant, he swears fifty oaths and is acquitted”. (Muwaatta Imam Malik,
Book 44, No. 44.1.2. mentioned by Billah, 43.)
The oath is made by swearing that, “In the name of Allah I did not kill the deceased and I
don’t know the killer.” This is when the 50oaths are taken by the suspects. Where the fifty
oaths are being taken by the accusers, they shall swear that, “In the name of Allah, the one
and only God, such people or person beaten the deceased to death or killed the deceased.”

Qasamah can only be applied only and only in murder cases therefore it’s not applicable in
other cases such as injury. This makes it rigid and applicable to only murder. According to the
Hanafi school it put out clearly that Qasamah shall only be relevant in proving a murder case
where the murderer is unknown and where he is known then it’s irrelevant since the murderer
shall be subjected to qisas and diyat

In Islam compurgation “al-Qasamah” was legislated to;

1. Address insufficient evidence: Qasamah provides a means to ascertain guilt or innocence

when conventional evidence is lacking, especially in cases where the perpetrator of a crime,
such as murder, cannot be identified.

2. Prevent further bloodshed: By holding the guilty party accountable through a joint oath,
Qasamah aims to prevent further bloodshed and promote peace within the community.

3. Ensure justice: Qasamah seeks to ensure that justice is served by providing a mechanism
for determining guilt or innocence, even in the absence of traditional evidence leaving no
murderer to escape punishment.

5. Uphold Islamic principles: Qasamah embodies principles of justice and accountability,

which are central to Islamic jurisprudence, by providing a legal framework for resolving
disputes and determining responsibility.

6. Preserve life: Qasamah emphasizes the sanctity of life by seeking to resolve conflicts
peacefully and avoiding further harm or violence within the community.

7. Fill in legal gaps: Qasamah serves to address situations where conventional legal evidence
is insufficient or unavailable, filling a gap in the legal framework to ensure cases are not left
unresolved.
8. Balance the burden of proof: In cases where traditional burden of proof requirements
cannot be met, Qasamah distributes the burden of proof among a larger group, reducing the
individual burden on any single party.

10. Deterrence of false accusations: The requirement of 50 individuals swearing an oath adds
weight and credibility to accusations, serving as a deterrent against false accusations and
misuse of the legal system for personal gain.

10. Maintain Social Order: By requiring the involvement of 50 individuals from the slain
person's community, Qasamah helps maintain social order and cohesion within the
community.

11. Maintain Public Trust: By providing a transparent and participatory process for resolving
legal disputes, Qasamah helps maintain public trust in the legal system and the administration
of justice within the Islamic community.

According to majority scholars Qasamah can only be applied where there is no “loathe”
(enmity) Meaning this is a major pre-condition before invoking or applying Qasamah.
Therefore, loath plays a very big role in the application of Qasamah.

HISTORICAL DEVELOPMENT OF QASAMA

Qasama is said to have existed within the Jahiliya period. This is based on two prophetic
hadiths which show its application far back then. This clearly shows that qasama is not a
mere creation of Islam but was just adopted from the Jahiliya setting.

The prophet confirmed the existence of qasama and its application by then when he
pronounced a judgement on the strength of it among the medina people (answars) had
claimed that their person had been killed by the Jews.

This is always referred to as the confirmation hadith (the Khaybar murder hadith) however
it has got multiple versions however, all the versions have got similar aspects;

Two answars named Abd All 􏰀h b. Sahl and Muhayyisa b mahmud of the banu Haritha tribe ,
went to Khaybar. When they reached the oasis, they all parted to different ways and each
carried on his own business. Later on, muhayyisa found Abd Allah murdered. He buried him
and returned to Madina where, accompanied by his brother Huwayyisa and the victim’s
brother Abd al-Rahman b. sahl, went to the prophet. When add al- Rahman began to speak,
the prophet said: “give due respect for age,” for Abd al-rahman was the youngest of them. He
stopped talking and the other two related the story of Abd Allah’s killing. The prophet asked:”
are you willing to swear fifty oaths and demand the blood money of your companion of your
killer?” the answered: “how can we swear when we have not witnessed the event?” the
prophet said: “in that case Jews may establish their innocence to you by swearing 50 oaths.”
the three men objected, saying: “how can we accept the oaths of unbelievers?” thereupon the
prophet paid the blood price himself.12

It’s from this hadith that qasama derives its validity and confirmation by the prophet, since
we literally evidence 50 oaths from the claimants to collaborate their allegation as well as 50
oaths from the accused persons denouncing anything associated with the murder or denying
their involvement.

It is significant to note that in this hadith, it’s the prophet who paid the blood money meaning
where the claimants swear 50 oaths as well as the accused persons then its left to the state to
pay blood man to the claimants.

INTERPRETATION AND APPLICATION OF QASAMAH ACCORDING TO THE

DIFFERENT SCHOLARS.

From time memorial qasama as an Islamic principle has been used to determine who is liable
for a murder if the perpetrator is unknown or the legal evidence against him or her is
inadequate.

There has been difference in the interpretation and application of the procedure of qasama by
different scholars / schools of Islamic law. The malikites and the hanafites have interpreted
the concept differently as assessed below;

MALIKI SCHOLARS

According to the malikis, qasama is the only procedure that can be invoked by the next of kin
of the deceased murdered person where a strong suspicion arises against the alleged suspect.
This is always based on the incriminating indications but not legal evidence therefore
1
Bukhari:2937 (Djizya)
2
Peters, Rudolph. “Murder in Khaybar: Some Thoughts on the Origins of the Qasāma Procedure in Islamic La
w.” Islamic Law and Society, vol. 9, no. 2, 2002, pp. 132–67. JSTOR, <http://www.jstor.org/stable/3399323> Ac
cessed 26 Mar. 2023
circumstantial evidence is the basis for the application of qasama. This is dependent on the
hadith reported by Sahl bin Abi Hatman who said that the prophet (P.B.U.H) said to the effect
that, “are you ready to take the fifty oaths?” with that you are entitled to blood money for
your brother. It’s on this statement that According to the malikis, the victims of the murdered
deceased person (agnatic relatives) swear fifty (50) oaths in order to corroborate their
suspicion / allegation. This oath is always taken in court in an open place and the heirs of the
victims taking the oath must be sane, mature and great repute.

In the oath they must indicate whether the murder was committed wilfully or by mistake. If
they swear that the murder was wilful, they may demand either retaliation (qisas), or payment
of the blood price (diya). Otherwise, they are entitled only to blood price, to be paid by the
defendant’s solidarity group.

The oath must be clear and condition explicitly the charge that the suspect is charged with.
The malikis as well say that the oaths should be taken in turns bt the suspected killers.

Under the malikis teachings the required lawth to procure application of Qasama may be
circumstantial such as;

1) The fact that a corpse is found in a hostile village or among a hostile family or tribe is
enough circumstantial evidence (lawth) for initiation of Qasama

2) The fact that a corpse was found lying on the ground shortly after people had left that spot.
“Here the exact person who might have killed the deceased can’t be spotted out of the many
neither can the whole group be held liable hence the invoking initiation of Qasama dependent
on the circumstantial evidence that they were the last people to be seen at the scene of crime”

3) Also, where one if found in blood-stained clothing near where someone was killed is
enough circumstantial evidence that the claimants can depend on to invoke Qasama.

4) The suspicion can as-well be based on legally incomplete evidence. This most especially in
instances where the deceased died after making a dying declaration naming his or her
attacker. In such instances where the prosecution fails to produce two witnesses who
witnessed the murder and as well the suspect never confesses, Qasama can be invoked.

THE HANAFI SCHOLARS

According to the Hanafis scholars the procedure for the interpretation and application of
Qasama is completely different i.e. The Hanafis scholars say that when a corpse manifesting
traces of violence is found in a city quarter, in a village or in the vicinity of a house (within
shouting distance).

Or the corpus is found in front or within one’s house or land, and the killer can’t be found or
is unknown, the deceased’s heirs can bring an action against the owner of the house or land or
all its inhabitants. Where the defendants deny the accusation, the heirs dependent on
circumstantial evidence can initiate Qasama by choosing 50 persons amongst the accused to
take 50 oaths to the effect that they aren’t the ones who killed the deceased.

This is by taking oath that, “in the name of Allah I did not kill such a person and I do not
know who the killer is.”

This hanafis interpretation and procedure is dependent on the Khaybar murder hadith or the
confirmation hadith.

It was reported by Al-Bukhari from sa’id bin ‘Abdi Al-Tai from bashi yassar that there was a
man of the Answars by the name of Sahal Bin Abi Htman who was murdered. The prophet
(P.B.U.H) said to the effect; “Give evidence as to who the killer is.” The replied, “we do not
have evidence.” The prophet (P.B.U.H) replied. “Demand oaths from the suspects.” They
replied, “we don’t agree to the oath spoken by Jews.” The prophet then ordered payment of
diyat to the family of the deceased from Baitul maal.

Al-Bukhari and Abu Dud as well reported that Abi-salamah and sulaiman bin Yasar of the
Answar had said that the prophet (P.B.U.H) had said to the Jews to the effect. “Fifty of your
men should take the oath,” this they refused. the prophet (P.B.U.H) then turned to the Ansars
and said “ Take oaths.” The Ansar asked, “should we take the oaths on something which is
unseen O prophet!” the prophet (P.B.U.H) Then levied the diyyah on the jews as the murder
victim was found in their area.

Al-Kasani has got a different idea of the same as he used an argument basing on the report
made by Zaid bin Maryam who said that a man had gone to the prophet P.B.U.H) and asked
to the effect that, O’ prophet, I have discovered that my brother had been killed in such a
person’s area. The Prophet (P.B.U.H) then said “gather 50 of their men to take oath in the
name of Allah that they did not kill him and they did not know who the killer is.” the man
then said, “O’ Prophet, I do not have any relations except him (the murder victim).” The
prophet (P.B.U.H) said, “for you one hundred camels.”

THE HANBAL

The Hannibal’s contend that where the accusers decline from taking oath, then the suspects
shall be freed from custody and the diyat shall be paid from Baitul maal.

THE SHAFI

According to the shafi, where the suspect refuses to take oath, then its returned to the
claimants, where the claimants take the oath in turn then the defendants shall be subjected to
a punishment.

CONDITIONS FOR APPLICATION OF QASAMA

There are different incriminating indications that can be based on to invoke qasama (lauth).
This are always basically circumstantial and not conclusive in nature to quest for the
prescribed punishment of retaliation most especially in murder cases.

There are predominately 7 conditions to be present for Qasamah to be invoked/ applied.

These include;

1. The victim must be a human being; The deceased must have been a human being. Its not a
condition that such a person must have been sane, mature or even Muslim, as long he/she was
human then Qasamah is applicable.

2. Signs of murder must be found on the victim or surroundings; The deceased person must at
least portray signs of homicide. Therefore, the body of the deceased must have features or
injuries that show that he/she was just killed. These signs might include bruises on the
different body parts, injuries from a deadly weapon etc. Also where blood is found to have
come out of the mouth, nostrils, or genitals Qasamah shall be applicable since these are
places where blood can never ordinarily flow from.

Medical evidence as well can be admitted to prove that one never died out of a natural cause
and in such instances then it shall prove that one was just killed hence making Qasamah
applicable.this was backed up Ahmad Fathi Bahansi this is more applicable currently since
the technological advancement in the medical sector can very well help doctors tell if
someone died naturally or not.

NB. The above conditions are required are always required by Hanafis before Qasamah is
invoked and according to them there is no need to prove loathe (enmity)

3. Loathe has also been laid down as a pre-condition by other jurists for Qasamah to be
applicable and in their take the condition of murder signs is not needed (irrelevant).

4. The killer is not known. Where the murderer is known then there will be no need for
Qasamah since the case shall now fall under qisas entailing the payment of diyyah and its
conditions.

5. The heirs of the deceased must have filed the suit. The successors or executors of the
deceased must have filled charges upon the death of their person in court demanding
Qasamah.

6. The accused party must have rejected the charge alleged against him. The 50 oaths shall
only become due to a person who is charged and denies the charge of murder alleged against
him and there is sufficient evidence to pin him and he has neither confessed.

7. Existence of a demand for Qasamah. Qasamah can’t be applied where it wasn’t claimed by
the heirs or the descendants of the deceased person. Therefore, a right for Qasamah only
arises where it’s quested for.

8. The place of murder is a private place. The place where the deceased was killed must be
private property making it open to easily suspect his or her murderers to be the inhabitants or
owners of the premises.

Where the deceased’s body is found in a public place then the diyat shall be paid from the
Baitul mul since keeping peace and security in society it’s the duty of the state. For example,

 If Uganda was a Muslim state and a dead body is found at city square, which place
belongs to the government or is public. Diyat here is paid by the government from the
state treasury since it is its duty to keep citizens safe with their property.
  Also, where a dead body if found flowing in river Nile, no person can be charged to
pay diyat for the death of the deceased but rather shall be paid from the state treasury/
Baitulmul since all physical features are controlled by the state.
 Where the deceased’s body is found on the river bank where the inhabitants must have
had his or her cries for help, then they shall be liable to pay diyat.
 Where the deceased’s body is found in a small river, then the inhabitants of that area
are liable to pay diyat since they are in control of such a small river. Where the dead
body is found on a ship or any vessel then Qasamah is retracted from the passengers
and the crew.
 Where the dead body is found in between two villages, where both inhabitants would
here the cries of the deceased to come for his or rescue, diyat shall be payable by the
nearest village in distance.
 Where the body is found at the back of an animal such as a horse where its owner is
not known, then diyat shall be paid by the government from Baitulmul.

CRITISISMS OF QASAMAH

Qasama as a way of proving different crimes such as murder in Islam has been criticized on
different grounds laying down the different Anomalies associated with its procedure by the
salafis jurists. The different anomalies are elaborated by the salafis jurists, and a philosopher
as well as systematic thinker Ibn Rushud. These salafis jurists included; Abu Qilabah, Salim
Bin ‘Abdahhah, Hakam bin ‘Utbah among others. They based on the following to disallow
Qasamah as a way of proving crime;

1. The doctrine of Qasama violates the principle that one may swear an oath only with
regard to something one knows or has observed. This is dependent to the fact that the
person testifying must give direct evidence hence he must have observed with his
eyes as well heard by his own ears.

2. It conflicts with the rule that the plaintiff must prove his claim and that only if he is
unable to do so must the defendant swear an oath. This is dependent on the burden of
proof where its clearly stated that “he who alleges must prove” there by putting the
burden on the claimant, however with Qasama mostly in the Hanafi procedure it’s the
defendants who swear the oath hence contradicting the legal principle as regards who
bears the burden to prove. This is one of the basic principles of the law of procedure.
 3. It violates the general rule that retaliation must be based on full evidence. This is
evident in the malikites procedure where claimants swear the 50 oaths that it’s the
claimant who killed the deceased then retaliation can be awarded. However, this
would contradict with then main principle that retaliation is not awards basing on
circumstantial evidence.

However, many jurists have distanced themselves from the conclusions reached by the Salafis
buy agreeing that Qasamah is one way of proving crime in Islamic law of evidence basing on
the following arguments;

1. that the above conclusions by the Salafis can be rejected because all the hadith
that Qasamah is based on are authentic. This is also dependent on the fact that
the Salafis arguments are general and not in any way specific and where a
specific argument exists it takes precedence over the general one.

2. Many jurists have as well come out and argued that Qasamah is acceptable by
way of ijma. This is because during Hadrat Umar’s reign Qasamah was
applied and accepted without any dispute from the companions and scholars
by then.

PARTIES TO QASAMAH AND ITS EFFECTS.

 Qasamah is a must to all heirs of the murdered person. However, there is also another
view that Qasamah can as well be taken by a few of the heirs of the deceased.

 All scholars are in agreement that diyat is payable to the family of the deceased by the
family of the suspected murderers after taking the oath. This means that mere taking
oath doesn’t mean the suspects shall go un punished but they are subjected to blood
money towards the deceased’s family / heirs.
 In unintentional - intentional murder, the family of the suspects are required to pay
lighter diyat compared to that paid where the was quasi-intentional. In intentional
murder cases, the hanafis and shafis opined that qisas is not demandable but diyat is
exactable on the estate of the accused.
  The malikis and hanbalis on the other hand opine that qisas is a must base on
Qasamah in intentional murder cases. For the malikis however, if there are more than
one accussed, qisas cannot be implemented merely on the basis of Qasamah.

In a nutshell, Qasama is invoked when legal evidence is insufficient to support an allegation

or when the exact perpetrator cannot be identified, relying on circumstantial evidence. Those
participating in Qasama must be of sound mind, reputable, of age, and free from major
offenses in Islam. Essentially, Qasamah serves as a crucial recourse within Islamic law,
providing a means to pursue justice and resolution when traditional evidence is lacking. The
solemn oath-taking process underscores its gravity, requiring individuals of impeccable
character to participate. Through Qasamah, Islamic law navigates complex criminal justice
scenarios, ensuring fairness and accountability while duly addressing the rights of victims
and accused parties alike.
GENERAL OVERVIEW

Various methods exist in Islam under the Islamic law of evidence for proving crimes, ranging
from testimony (shahadah) from witnesses to confession (Iqrar) by the accused, then oaths
and specifically, in this study, we are to appreciate joint oaths “Qasamah” as a unique method
or type of oath per se, employed in cases where a murder has been committed, and the
perpetrator cannot be identified. Qasamah entails fifty men from the community of the slain
individual swearing oaths to refute accusations of homicide. This procedure was ruled upon
by Imam Malik bin Anas, who stated that fifty men of the slain person's community swear 50
oaths, if there are not fifty men, more oaths can be made by those of them who already swore.
If there is only the defendant, he swears fifty oaths and is acquitted. Qasamah was legislated
to prevent unjust bloodshed, preserve Muslim lives, and ensure murderers do not escape
punishment. Historically, Qasamah finds its roots in pre-Islamic times and has been
confirmed by the Prophet Muhammad, as seen in the Khaybar murder hadith. Different
Islamic legal schools interpret and apply Qasamah differently, with conditions such as the
presence of murder signs and the unknown identity of the killer being factors. Maliki scholars
advocate for Qasamah to be initiated by the deceased's next of kin, relying on circumstantial
evidence and fifty oaths to establish suspicion against the alleged suspect. Conversely, Hanafi
scholars propose a different approach, allowing the heirs to accuse the property owner or
inhabitants based on circumstantial evidence, as per the Khaybar murder hadith. The major
clash point arises from the criteria for invoking Qasamah and the nature of evidence required,
with Maliki scholars emphasizing circumstantial indications and Hanafi scholars focusing on
the location of the crime scene and the identities of the accused. The parties involved in
Qasamah are the heirs of the murdered person, who are entitled to receive diyat (blood
money) from the family of the suspected murderers after they have taken the oath. Despite
variations in interpretation and criticism, from some jurists, it is accepted by many as a valid
method of proving crime in Islamic law, supported by authentic hadiths and historical
precedent. Qasamah remains an integral part of the Islamic legal framework, embodying
principles of justice, accountability, and preservation of life.

References.

1. Sharia - The Holy Qur’an, Hadith, Ijma’, Istihsan

2. Text books
- General Principles of Criminal Evidence in Islamic Jurisprudence (From Islamic
Criminal Justice System
- Law of Murder under Islamic Criminal Law, by Dr. Masuma Pervin
- Al-Qasamah by MAHMUD SAEDON A. OTHMAN 1996, An introduction to
Islamic law of evidence