AL-KITABAH

(DOCUMENTARY EVIDENCE)

1
 INTRODUCTION
• in principle, documentary evidence does not play an
important role
• shahadah, iqrar & oath are the primary types of
proof
• sayings: “personal word of an upright Muslim was
deemed worthier than an abstract piece of paper”
• however, documentary evidence is widely accepted
today:-
• because of unreliability of witness
• even though it is not the best type of proof but it is
the reliable form of evidence

2
 DEFINITION
Literal Meaning
- comes from the root word “kataba” which means to
write, to record, to draft
- “kitabah” means documents, message, statement ,
notes
- therefore al-Kitabah refers to any document which is
written by someone who may be in a position of
authority or a judge or any ordinary person

3
 Technical Meaning
• any writing or document which can be used in the
course of the trial in order to establish certain fact
• regardless of who wrote it (either judge, ruler or
layman)
• either in the official letter or not
• For the purpose of :
(i) to prove the existence of the document itself;
or
(ii) to prove the contents of the documents

4
• Sec 3 SCE(FT)
– All documents produced for the inspection of
Court is “evidence”
– “documents” means anything expressed,
described, or represented, upon any material
including a disc, film etc

• Chapter 3 (D/E)
• Sec 48 – 71
– Applications
– Al-kitabah as primary & secondary evidence

5
 LEGAL BASIS OF AL-KITABAH

• Al-Baqarah : 282
‫ياايها الذين امنوا إذا تداينتم بدين إلى اجل مسمى فاكتبوه‬
“O ye who believe! When you deal with each other, in transactions involving
future obligations in a fixed period of time, reduce them in writing”

☺ Opinions of Muslim jurists:

a. Jumhur:
-not obligatory to write down the transaction but it is
recommended to do so
b. Ibn Hazm
- it is obligatory to put it in writing
6
• Al-Nur: 33
‫والذين يبتغون الكتاب مما ملكي أيمانكم فكاتبوهم إن علمتم فيهم خيرا‬
“And if any of your slaves ask for a deed in writing (for emancipation) give
them such a deed if ye know any good in them”

• Ali-Imran: 181
‫لقد سمع اهلل قول الذين قالوا أن اهلل فقير ونحن أغنيأ سنكتب ما قالوا‬....
“Allah hath heard the taunt of those who say: Truly, Allah is indigent and
we are rich – We shall certainly record their word…”

7
• Ali-Imran: 181
‫لقد سمع اهلل قول الذين قالوا أن اهلل فقير ونحن أغنيأ سنكتب ما‬
‫قالوا‬....
“Allah hath heard the taunt of those who say: Truly, Allah is
indigent and we are rich – We shall certainly record their
word…”

Other relevant verses:

• Al-Anbiya’ : 105
• Al-Inshiqaq : 7-11

8
 HADITH ON AL-KITABAH

• Reported by Ibn Abbas that the Prophet s.a.w sent letters

to Caesar and also to his representatives, administrators
& collector of zakat.
• Reported from Dihak ibn Qais that a document was
written on the Prophet’s instruction to allow the wife of
Ashim al-Tha’labi to inherit from the blood money
(diyyah) of her husband.

9
• The Prophet s.a.w wrote to the Jews:
“The Jews should either pay the money (jizyah) or be
ready for a war”.
Practice of Companions:
• Reported by Ubaidullah ibn Muhriz that Musa ibn Anas
(a judge) wrote a letter to al-Qasim (another judge) who
accepted the letter as a ground for judgment.
• Khulafa’ al-Rasyidun accepted letter from qadi to
another qadi without condition.

10
 MAXIMS ON AL-KITABAH
• Art. 69 Mejelle
‫الكتاب ماالخطاب‬
“Correspondence by writing is like an oral
statement”

• Arts. 1606 – 1612 Mejelle

- admissibility of admission made in writing

11
 TYPES OF AL-KITABAH
• 2 types of documentary evidence:
– Public / official (sec 57 SCE)
- includes documents of :
– sovereign authority
– Official bodies & tribunals
– Public officers, legislative, judicial & executive

– Private / unofficial (sec 58 SCE)

- documents other than above
12
 Public Documents
• Imam Bukhari:
“Documents which is sealed (makhtum) such as letter
from judge to another judge (kitab al-qadi ila al-qadi)
is permissible & can be the basis for judgment.”

• Authenticity of public documents

– Considered as authentic documents
– Shall be admissible as evidence
– No further inspection or enquiry needed

13
 Private Documents
• Art 1607 Mejelle
– A person instruct someone else to write
confession on his behalf & signed /sealed it –
accepted as admission
• Art 1608 Mejelle
– Entries of merchant in his book – accepted as
documentary evidence
• Art 1609 Mejelle
– Someone has himself written or asked the clerk to
write an acknowledgement of debt - accepted

14
• Ishaq ibn Ibrahim asked Imam Ahmad:
– “If a man dies and under his pillow was found a
will which was not witnesses or known by anyone,
should the will be executed?” Imam Ahmad said:
“If his handwriting is recognised, execute the
contents of the will.”

15
 ADMISSIBILITY OF DOCUMENTARY EVIDENCE
AS CONCLUSIVE PROOF
Documentary Evidence is
NOT a conclusive proof but
can be a supportive evidence
View of Hanafis, some of Malikis &
some of Shafiis
a. handwritings resemble to one anor
- possibility of being forged
b. the intention – the writer may
not be serious/no particular
intention while writing
the document
c. only testimony/ admission/oath
are accepted as the principal
methods of proof
- exclude documentary evidence
(al-kitabah)
Documentary Evidence can be
a conclusive proof
- especially in civil matters
View of Jumhur
i. documentary evidence is conclusive
Proof BUT must be accepted with full
caution
ii. Basis of acceptance
# Baqarah:282
# An-Nur:33
iii. Counter-argument
a. resemble to one another
- can be determined by experts/
examination
b. intention of the writer
- can be proven by supporting
evidence (qarinah)
c. only shahadah/iqrar & oath are
accepted - khulafa’ al-rasyidun &
companions accepted letter from
qadi to another qadi 16
without condition
 ADMISSIBILITY OF
ADMISSIBILITY OF DOCUMENTARY
DOCUMENTARY EVIDENCE
EVIDENCE

Civil Cases
Civil Cases Criminal/Hudud Cases
Criminal/Hudud Cases Ta’zir
Ta’zir
-- accepted
accepted by by all
all jurists
jurists Jumhur:
Jumhur: Jumhur:
Jumhur:
-- but
but with
with cautious
cautious -- documentary
documentary evidence
evidence is
is -- left
left to
to the
the discretion
discretion
(i.e there
(i.e there is is no
no possibility
possibility not accepted
not accepted in
in criminal
criminal of the
of the authority
authority
that itit is
that is aa forged
forged cases
cases considering the
considering the
document)
document) seriousness of
seriousness of the
the
Hanafis -- EXCEPT
EXCEPT in
in the
the case
case of
of case && the
case the amount
amount
Hanafis confession made
made inin writing
writing
confession of damage
of damage caused
caused to to
-- Art
Art 69
69 Mejelle
Mejelle
the victim
the victim
-- Arts
Arts 1606-1612
1606-1612 -- BUT
BUT only
only accepted
accepted where
where
there is
there is no
no retraction
retraction of
of
Malikis
Malikis such confession
such confession
itit is
is considered
considered as
as
apparent consideration
apparent consideration
(amarat zahiriyyah)
(amarat zahiriyyah)
Hanabilah &
Hanabilah & Shafiis
Shafiis
-- ifif only
only the
the writing
writing is
is
clear && unambiguous
clear unambiguous
17
 INTER-JUDGE CORRESPONDENCE
( ‫ك تابا لقاضىا لىا لقاضى‬

a. Forms of Documents

document containing only

the testimony of witnesses

document containing the actual

judgment of a judge for its
execution by another judge

18
 INTER-JUDGE CORRESPONDENCE
( ‫ك تابا لقاضىا لىا لقاضى‬

b. Admissibility of such document

Jumhur: Maliki & Zahiri :

- accepted in all cases - extended to qisas & hudud
except hudud & qisas

Shafiis
-extended to cases of personal
injuries BUT not murder
-provided that the document
is authenticated by 2 male witnesses
19
 CONDITIONS OF ADMISSIBILITY

 There must be an evidence to show that it is

judicial document.
- must be attested by testimony of 2 male
witnesses or 1 male & 2 female
 The letter must be sealed, stamped & attested
by the first qadi (according to Hanabilah).
 The contents must be clear & free from any
ambiguity.
 Abu Hanifah : the document must be read out
to the witnesses.
Abu Yusuf: it is sufficient to be testified
- need not to be read out because
the contents may be confidential
20
 CONDITIONS OF ADMISSIBILITY

 The distance between the judges –

at least 2 marhalah.
 Must bear the names of the writer (judge), plaintiff,
defendant, witnesses & the summary of the case
(so as to distinguish it from any other case).
 The contents only concern about civil rights
(except Malikis & Zahiris).
 The despatching & receiving judge(s) should be in
employment (not dismissed etc).

21
 PROCEDURE OF PROVING
DOCUMENTARY EVIDENCE
• General principle :
– Documentary evidence is accepted when the
authenticity is proven
– Procedure to prove authenticity:
• Signature / seal – sec 55
• Two witness of the documents - sec 56(1)
• Two person who can identify the
handwriting/signature - sec 56(2)
• Refer to expert - sec 56(4)
• Oath – sec 56(6)
22
• Other modes of proof

– Original documents
– regarded as primary evidence (sec 49)
- Shall be used in all circumstances except in
certain cases allowed.

– Copies of the original

– regarded as secondary evidence (sec 50)
- Certified copies
23
 CASES
• Hayati binti Othman v Ayob bin Zainal
• Dah binti Mat v Abdullah bin Mat Piah
• Awang bin Said v Dollah b. Jusoh & Fatimah bt Yaakob
• Zakaria b Awang Kechik v Maria @Salehmah bt Derahim
• Abdullah Bakri bin Abdullah Wahab v Khalidah binti
Mohammad
• Poolimahee Rajeswary @ Fatimah binti Baba V Meah binti
Hussain

24
 Electronic Evidence
• Internet banking
• Online transaction

• S 49: Explanation 3
• Applicability : Muamalat
• Case: Moriazi bin Muhammad v Ajmawati
Atan

25
 Al- KITABAH IN
PAKISTAN & BRUNEI

26
 PAKISTAN
• Chapter V : Of Documentary Evidence
Art 72-101
• Def: art 2
• Primary Evidence : s art 73
• Secondary Evidence: art 74
• Proof of document : art 84:Comparison of signature ,
writing or seal with others admitted or proved

27
Public documents : art 85-89
•Public documents : art 85
•Private documents : art 86

Presumptions as to documents
art 90-101

28
 BRUNEI

• Chapter 111- Of Documentary Evidence ss 56-89

• Def : s3

• Primary Evidence : s 57
• Secondary Evidence: s 58
• Proof of document : 64

29
• Public documents : ss 66-70
• Private documents : s66
• Private documents : 67

• Presumptions as to documents
• Ss 71-81

30
THANK YOU

31