RESPONSIBILITY OF EVIDENCE OF SYARIAH

COURT

GIVING EVIDENCE SHA 4020

BY DR. NORJIHAN AB AZIZ
 RESPONSIBILITY OF GIVING
EVIDENCE
❖General rule: obligatory on the person to whom a request to give is made to
❖A person who has evidence must come forward to give it, for the purpose of that
responsibility –returning to the right way.
❖It is the responsibility of anyone in ensuring the concept of justice could be
established.

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 َ ‫اء لِل ّ َ ِه َول َْو َعل َى أَن ْ ُف ِسك ُْم أ َ ِو ال َْوالِ َديْ ِن َوال ْأ َ ْق َر ِب‬
‫ين ِإ ْن‬ َ ‫ين ِبال ْ ِق ْس ِط ُش َه َد‬
َ ‫ام‬ ِ ‫امنُوا ك ُونُوا َق ّ َو‬ َ ‫يَاأَيُّ َها ال ّ َ ِذ‬
َ ‫ين َء‬
َ ‫يَك ُْن َغ ِنيًّا أ َ ْو َف ِق ًيرا َفالل ّ َ ُه أ َ ْول َى ِب ِه َما َفل َا تَتَّ ِب ُعوا ال َْه َوى أ َ ْن تَ ْع ِدل ُوا َو ِإ ْن تَل ُْووا أ َ ْو تُ ْع ِر ُضوا َف ِإ َّن الل ّ َ َه ك‬
‫َان‬
‫ُون َخ ِب ًيرا‬
َ ‫ِب َما تَ ْع َمل‬

O believers! Be ever steadfast in upholding justice, bearing witness to the truth for the sake
of Allah, even though it be against yourselves, your parents, or your kinsmen. Whether he
(the accused) be rich or poor (do not let it stop you from saying the truth), for Allah can best
protect the wellbeing of both. Therefore, do not be led by passion, lest you should swerve
from the truth. If you distort your testimony or decline (from being witnesses), know that
Allah is Well-Acquianted with all that you do.(Al-Nisa’, 4:135)

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 ‫اد َة َو َم ْن يَكْتُ ْم َها َف ِإن ّ َُه َءا ِثمٌ َقل ْبُ ُه‬
َ ‫الش َه‬
َّ ‫َول َا تَكْتُ ُموا‬
And let him (who stand as witnesses) not hide testimony, for whoever hides it, is sinful
at heart. (Al-Baqarah, 2: 283)

ْ ‫ٓاء ِإ َذا َما ُد ُعو‌ۚا‬ ُّ ‫ۡب‬

ُ ‫ٱلش َہ َد‬ َ ‫َول َا يَأ‬
Witnesses must not refuse to give evidence when they are summoned as witnesses. (Al-
Baqarah, 2: 282)

❖Jurists agreed that basically the form of order must be interpreted as

compulsory or a must unless there is evidence to show otherwise.
❖basically all agreed that the witnesses should not refuse to respond it (giving
evidence) when they are required to do so.
❖According to Imam al-Shafi'i it is fardhu ain. it is the responsibility of the
person who received such evidence to appear and to give evidence.

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What is the position in non-hudud and hudud cases?

Non-hudud cases: fard kifayah

❖The fiqh jurists: Unanimously agree that in non-hudud cases, the rule of giving
evidence is fard kifayah i.e. the responsibility will be discharged if a member of
the community comes forward to give evidence.
❖But, the rule of fard kifayah will be transformed to fard ‘ain if nobody volunteers
to give evidence.

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❖Intially, in non hudud cases it is fard kifayyah to anyone to give evidence. However, it can
turn to fard ain if nobody appear to give evidence

❖e.g eating in public during Ramadhan

❖Fard kifayyah: If a group of people more than 2 persons witnessed the incident
❖Fard ain:
❖1) even it happened in the presence of a group of people, if no one turns up to give
evidence, the court cannot pass judgment until witnesses appeared.
❖2) if only 2 witnesses witnessed the incident, both of them are obliged to give evidence
❖3) if the court compel specific persons to give evidence

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Hudud cases:
❖It is not obligatory to give evidence where the witness is given the discretion
whether to testify or not testify.
❖Ibn Al-Humam (Hanafi school): Witnessesses are given the choice of
concealing the evidence or to disclose evidence by testifying. It is encouraged
(afdal) not to reveal evidence.
❖Al-Shirazi (Shafi’i): A witness should not give his testimony in hudud cases as
it is recommendable (mandub) to conceal such offence. If the witness volunteers
to testify then his testimony shall be accepted.
❖it is encouraged (afdhal) not to reveal evidence.

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Hadith
‫ومن ستر مسلما ستره الله فى الدنيا واالخرة‬
It means: Those who cover the faults of a Muslim, Allah will cover his faults on
earth and in the hereafter.

‫ادرؤا الحدود بالشبهات ما استطعتم‬

Based on hadith, Abu Hanifah reported that the Prophet said, “Reject hudud offences
as long as you can reject it with one rejection”.

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❖It was reported that Abu Bakrah, Nafi’ and Shabl bin Mabad at one time were
witnesses (voluntarily) during the zina trial of al-Mughirah bin Syu'bah with the
caliph Umar presiding over the matter.

❖Abu Ya'ala: mentioned on the issue of testimony in hudood punishment (which

are the rights of Allah s.w.t. and the rights of human beings) that the testimony is
not the duty on a witness.

❖Said: if a man said, he has a testimony with so & so but he (witnesses) denied it,
the judge has no right to oppress witnesses nor bring them

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Ibnu al-Qayyim: the testimony is a right of the witness that he must fulfil it, and he
will be considered sinful if he does not fulfil it.
Based on Quranic verses;

‫اد َة َو َم ْن يَكْتُ ْم َها َف ِإن ّ َُه َءا ِثمٌ َقل ْبُ ُه‬
َ ‫الش َه‬
َّ ‫َول َا تَكْتُ ُموا‬
Conceal not evidence; for whoever conceals it, his heart is tainted with sin.

‫عوا‬
ُ ‫اء ِإ َذا َما ُد‬ ‫د‬
َ ‫ه‬
َ ُ
‫الش‬
ّ ‫ب‬ ْ ‫َول َا يَأ‬
ُ َ
Witnesses should not refuse when are called on for evidence.

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❖Ibnu al-Qayyim quoted from the opinion of Imam Ahmad: the above verses are
to include the duty of witnesses where they will be sinful if they leave it, and they
will be subjected to mischief and warning.
❖Ibnu al-Qayyim also elaborated the analogy of Imam Ahmad is that: if witness
conceals his testimony regarding the right, he has to be responsible for it.

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❖Responsibility of giving evidence is based on two factors:
(1) giving evidence is not obligatory as it is done under discretion
(2) giving of evidence or testimony pursuant to an order of a court as witnesses for
Allah is obligatory to secure the life, property and interests of man. If in
consequence of a court order a witness refuses to testify it amounts to contempt of
court and disobedience to the lawful authority.
❖Ibn Abu Dam: “When testimony of a person is required by a judge thereafter such
testimony or evidence and the adducing thereof becomes an amanah (trust) and also
a fard ‘ain”.

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 Norazaha bin Ariffin lwn Rohana bt Othman
❖The W applied for divorce by ta’liq (ta’liq is an agreement signed during the
marriage. It allows the wife to apply for a divorce (divorce ta’liq) if the husband
violates any of the conditions contained in the ta’liq.
❖The W had taken an oath and produce 1 witness to prove .
❖The H argued that this cannot be accepted in the Court, 2 witnesses are required
to support W’s claim.
❖The W’s counsel asked to postpone the trial to another date since the W fail to
produce other witnesses to support her claim but it was objected by the H’s
counsel.

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❖SSC: Affirmed the ta’liq. The learned judge accepted and recorded statement (shahadah)
made by the respondent and the appellant, and hold that those statements were sufficient
to make a decision without calling other witnesses.
❖SHC: Statement given by the appellant and the respondent for ta’liq application were
insufficient. Ta’liq is void. The marriage of the parties are still valid.
❖The learned court shall wait until the W had produced all witnesses before listening to the
H’s submission.
❖It is role of the counsel to help the client to find witnesses because maybe the disputants
did not know the credibility or the criteria of a witness and who can be a witness.
❖The learned judge has to investigate evidence given by witnesses which was brought by
the plaintiff (Wife).

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CONCLUSION
❖Generally, it is fard kifayyah to anyone who witnessed the incident to give
testimony in the court.
❖It can turns to fard ain if there is no one willing to appear to assist the court to pass
judgment, or number of witnesses witnessed the incident meet the minimum number
of witnesses required under the Islamic law of evidence, or the persons received
summons to compel appearance before the court.
❖In hudud cases it is encouraged to conceal evidence.
❖Non-hudud cases, general rule applies.

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