Evidence is defined in Islam to mean “an evident indication of the commission of an offense 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 under Surah-al-Baqra-282, “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 from two witnesses (theft) and others are proved by
testimony from four witnesses(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.

Crime in Islam can as well can be proved by confession 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 hud crime a hud punishment
shall not granted.

Finally, some crimes in Islam are proven by oath (taking oath) this can be by the claimant in instance
of accusation of adultery by their husband towards their wife “li ’an”. Also, oath can be taken in
instances where a crime such as murder has been committed and no one can be pinned or suspected.
This can happen 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 hence the term “Qasamat”

COMPURGATION (AL-QASAMAH)

“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.

This most applies in instances of homicides where the murderer is hard to identify from among the
many. According to the malikites Qasamah is only applicable where no legal evidence can be found to
pin anyone for the unlawful killing of the deceased. This means there should be circumstantial
evidence to at least link a certain group of people to the murder however much it would be
inconclusive.

In Islam compurgation “al-Qasamah” was legislated to; 1)- avoid bloodshed in vain, 2)- preserve the
lives of Muslims, 3)- to let no way for the murderer to escape punishment. In Al- qasama, oath is
taken by 50 men of the people of the slain person individually.

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.

According to majority scholars Qasamah can only be applied where there is no “lauth” Meaning this
is a major pre-condition before invoking or applying Qasamah. Therefore, lauth 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.

Its 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 5o oaths from the
accused persons denouncing anything associated with the murder or denying their involvement.

Its significant 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 ACCORDING TO THE MALIKIS AND HANAFIS

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;

MALIKIS

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 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. Its on this urgement 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 willfully or by mistake. If they
swear that the murder was willful, they may demand either retaliation (qesas), 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.

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 Baitulmul.

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.

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 aswell 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.
According to the Hanafis scholars the procedure for the interpretation and application of Qasama is
completely different i.e. The Hanafi 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 Infront 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
Baitulmul.

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.”

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 lauth (enmity)

3. Lauth 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,

I. 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.

II. 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.

III. 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.
IV. 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.

V. 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.

VI. 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.

However, 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 them selves 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 anyway 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 conclusion, Qasama is only applied or invoked in instances where legal evidence is insufficient to
backup an allegation or where the exact perpetrator cannot be pinned. Therefore, this means Qasama
is only invoked dependent on circumstantial evidence. More still for any person to take oath in
qasama such a person should be of sound mind, great repute, of age and should be a person who has
never been convicted of any major offense in Islam.