Definition of word “Witness”:

The term witness can be defined as : A witness is someone who deposes a relevant fact in a
case or testifies to prove or refute a point

It should be noted that; The ability to testify as a witness is a prerequisite for administering
testimony under oath and is separate from the witness’s credibility.

Definition of word “Competency”:

The term Competency may be described as “competence is a prerequisite for

administering testimony under oath.”

Competency of witness: There are certain qualifications for the competency of the
witness. Law imposes the following restriction on competent witness:

 Age limit: Law does not provide any age limit for the competency of witness but he
should know and retain in his memory the facts.

 Understanding capability: Competent witness must understand what court of law

wants to enquire. He must have capability to answer the questions of court.

 To whom court thinks competent: Satisfaction of the court is another essential

element for the competency of witness. If court does not consider witness as
competent he cannot appear as competent witness even witness is person of sound
mind or generally considered competent.

 True Muslim: In certain cases only true Muslim is competent witness particularly in
Hudood crimes. He must be person of those qualifications which Quran and Sunnah
prescribe for a witness.

Incompetent witness: Law has debarred some persons to appear as competent

witness. Detail of those is as follows:

 Incapacity of rational response: Person who is incapable to understand the question

put to him or who cannot give rational answers of court is not competent witness.

 Young age factor: Although no age limit is prescribed for the competency of witness
but it does not mean that person of every age can appear as competent witness.
Person who due to young age factor cannot understand the requirement of evidence
 is not considered competent witness.

 Old age factor: Old age does not matter but it matters a lot. Person who due to old
age factor could not understand the rationality of the questions and answers put to
him in court is not competent witness.

 Bodily infirmity: Person who is bodily infirm is not competent witness.

 Mental infirmity: Person of unsound mind is debarred to appear as competent

witness, i.e., who was person of unsound mind at the time of occurrence of incident.

 Conviction in false evidence: Person is not competent who has been convicted in
false evidence except where he has been repented and mended his ways.

Determination of competency of witness: Where there is any doubt of competency

of witness, only court shall determine his competency by putting questions to him. His
response shall explore his competency.

Exceptions: Law has prescribed certain exceptions for the competency of the witness such
as:

 Ordinary witness: Where person of the qualifications prescribed in Quran and

Sunnah is not available, the court may take the evidence of the person who is
available to testify the fact in issues.

 Repented person: Person who had been debarred to appear as witness due to
his disqualification by way of false evidence or any other major sins, can be
considered as competent witness if court thinks that he has mended his ways
and repented.

 Lunacy while testifying: A person who was person of sound mind at the time of
occurrence of the incident is not incompetent witness if he loses his memory or
becomes person of unsound mind while he testify the truth before court. Court
shall give him reasonable time for recovery so that he may testify truth before
court. Time relaxation is provided to reach at truth and conclusion.

 Child witness: Child is competent witness provided court thinks him competent
by testifying as to his ability to give evidence. Set question cannot be asked to
determine his ability to give evidence.
 Doctrine of Tazkiya-tu-Shahood
Rule of determination of competence of a witness according to injunctions of Islam:

The jurists have put forward the concept of Tazkiya-tu-Shahood as a rule to determine the
competency of a witness according to the injunctions of Islam. They are of the view that
only this rule contains all necessary instructions relating to the competency of a witness.

Concept of Tazkiya-tu-Shahood:

According to Islam the concept of Tazkiya-tu-Shahood is defined as the “purgation of

witness”.

Modes of conducting Tazkiya:

According to Fatawa-e Alamgiry there are two modes of conducting Tazkiya;

• Open inquiry as to the competency of a witness; or

• Secret inquiry into the competency of a witness.

Open inquiry is conducted by asking people to give their opinion by either raising hands or
by oral testimony. However, secret inquiry is conducted through writing – this method is
called “masturah”.

Persons who can be questioned:

Help of the following persons can be taken while conducting Tazkiya;

• Persons who are reliable;

• Persons who are acquainted with the life and character of the witness whose competency
is being challenged.

Purpose of inquiry:

The purpose is to make an independent inquiry into the conduct of the witness. This
must be done through an independent and reliable source so that a person is not
condemned on the “evidence of unjust person”.
Importance of Testimony According to Quran

Important of giving testimony has been provided by Holy Quran:

Who is able to understand the question: A witness should be able to understand the
question put to them but due to tender age, old age or disease whether body or mind.

Who is not convicted by a court for perjury: The witness should not be convicted by Court
for giving false testimony.

Free From Prejudice: A witness must not be prejudice as well as the testimony of the
following witness is unacceptable.

• The father in favour of his son and vice versa

• Slave in favour of his master

• Non-Muslim against a Muslim etc.

A Witness Must be Muslim:

• The witness must be a Muslim for testimony

• Disbeliever not permitted for testimony

• Imam Abu Hanifa permits disbeliever testimony upon certain conditions

• But other schools of thought disagree about the testimony of disbeliever

A Witness must be reliable of Character:

• A witness should be clean from deeds which cause Hadd punishment

• The witness should be free from sins

• The Witness should be Adil (Just)

• A Witness must be a mature person with good mental ability and he must be able to
understand the fact related to criminal activity.
 • The Witness must possess perfect eye-sight and must be capable of being seen in
the facts.

• A witness must possess the capacity to communicate in Hudood cases

• The person has a good memory because a person of a bad memory is unacceptable
as witness

Conditions of Giving Testimony

There are certain conditions of giving testimony:

• There must be the existence of complaint and requirement to the testimony

• Testimony should be given before the court

• Witness has the personal knowledge of the fact, hearsay is unacceptable

• The word Shahadat must be used in the beginning

• A witness must remember the incident

• He must be able to identify the parties

• Conformity (Mutabqat) of the statement with the claim

• In Hadood Cases (Qadhaf) facts must not occur in the distant part

Competency and Number of witnesses: As a general rule, only one witness either male
or female is sufficient for conviction. But as far as Hudood crimes are concerned Quran and
Sunnah determine the number of witnesses.

Competency of woman as a witness is discussed as under:

Competency in Hadood Cases: In Hadood Cases, the competency of a woman is regarded as

incompetent

In Tazir Cases: In the case where violation of the right of individuals involved, women’s
testimony is accepted. Prescribed Nisab for the testimony of one male and two female
witnesses.

Finance Transaction: In a financial matter or future obligation, the testimony of two women
is accepted with one male.

In Specific Matter: in such matter where the testimony of a woman is needed are matter
generally related to woman. Such as whether a particular child was born by a particular
woman can be proved by the testimony of a single woman.

Other Matter: A court may accept and act upon the testimony of one woman after the
tazkiya of Women that she has possessed all qualification as a witness.

Relevant verses from Holy Quran:

“The witnesses should not refuse when they are called on (for evidence)”Al Baqra:282

“But take witnesses whenever you make a commercial contract and let neither scriber nor
witness suffer harm” Al Baqra:282

“Ah! Who is more unjust than those who conceal the testimony they have from Allah? But
Allah is not unmindful of what ye do!”Al Baqra :140

“And keep your testimony upright for Allah” Al Talaq: 2

“O you who believe! Stand out firmly for Allah as witnesses, to fair dealing, and let not the
hatred of others to you make you swerve to wrong and depart from justice. Be just: that is
next to Piety: and fear Allah for Allah is well-acquainted with all that you do.” Al Maida: 8

O you who believe! Stand out firmly for justice, as witnesses to Allah, even as against
yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah
can best protect both. Follow not the lusts (of your hearts) lest ye swerve and if ye distort
(justice) or decline to do justice, verily Allah is well-acquainted with all that ye do .Al Nisa:
135

"That should make it closer (to the fact) that their testimony would be in its true shape (and
thus accepted), or else they would fear that (other) oaths would be admitted after their
oaths. And fear Allâh and listen (with obedience to Him). And Allah guides not the people
who are Al-Fâsiqûn (the rebellious and disobedient).” Al Maida: 108

“Those who witness no falsehood and, if they pass by futility, they pass by it with
honourable (avoidance)” Al Furqan: 72

References

1. Qanoon-e-shaadat order 1985.

2. Concept of lecture from class of this subject.
3. Sir umar lecture on youtube.
4. Testimony and it’s importance in islamic law article by dr humayun abbas shams.
5. Holy Quran for the verses.
6. Nasirlawsite.com.