EVIDENCE

Arabic Shahādah ( شهادة‎ ). The law of evidence is very clearly laid down in all Muḥammadan books of law, especially in the Hidāyah , and the Durru ʾl-Muk͟htār , and it is interesting to observe the difference between the law of evidence as provided for in the law of Moses, and that laid down in Muḥammadan books. In the Pent a teuch two witne es at least were required to establish any charge ( Num. xxxv. 30 ), and the witne who withheld the truth was censured ( Lev. v. 1 ), whilst slanderous reports and officious witne es were discouraged ( Ex. xxiii. 1 ; Lev. xix. 16 ), and false witne es were punished with the punishment due to the offence they sought to establish ( Deut. xix. 16 ). According to Joseph us, women and slaves were not admitted to give evidence. ( Ant . iv. c. 8, s. 15.) The Sunnī law, as explained by the author of the Hidāyah (vol. iii. p. 664), is in many respects the same as the Jewish and is as follows:— It is the duty of witne es to bear testimony, and it is not lawful for them to conceal it, when the party concerned demands it from them. Because it is written in the Qurʾān, Sūrah ii. 282 , “Let not witne es withhold their evidence when it is demanded of them.” And again, “Conceal not your testimony, for whoever conceals his testimony is an offender.” The requisition of the party is a condition, because the delivery of evidence is the right of the party requiring it, and therefore rests upon his requisition of it, as is the case with respect to all other rights. In cases inducing corporal punishment, witne es are at liberty either to give or withhold their testimony as they please; because in such case they are distracted between two laudable actions; namely, the establishment of the punishment, and the preservation of the criminal’s character. The concealment of vice is, moreover, preferable; because the prophet said to a person that had borne testimony, “ Verily, it would have been better for you, if you had concealed it ”; and also because he elsewhere said, “ Whoever conceals the vices of his brother Muslim, shall have a veil drawn over his own crimes in both worlds by God .” Besides, it has been inculcated both by the Prophet and his Companions as commendable to a ist in the prevention of corporal punishment; and this is an evident argument for the concealment of such evidence as tends to establish it. It is incumbent, however, in the case of theft , to bear evidence to the property , by testifying that “a certain person took such property,” in order to preserve the right of the proprietor; but the word taken must be used instead of stolen , to the end that the crime may be kept concealed; besides, if the word stolen were used, the thief would be rendered liable to amputation; and as, where amputation is incurred, there is no responsibility for the property, the proprietor’s right would be destroyed. The evidence required in a case of whoredom is that of four men, as has been ruled in the Qurʾān ( Sūrah xxiv. 3 ); and the testimony of a woman in such a case is not admitted; because, az-Zuhrī says, “in the time of the Prophet and his two immediate succe ors, it was an invariable rule to exclude the evidence of women in all cases inducing punishment or retaliation,” and also because the testimony of women involves a degree of doubt, as it is merely a substitute for evidence, being accepted only where the testimony of men cannot be had; and therefore it is not admitted in any matter liable to drop from the existence of a doubt. The evidence required in other criminal cases is that of two men, according to the text of the Qurʾān; and the testimony of women is not admitted, on the strength of the tradition of az-Zuhrī above quoted. In all other cases the evidence required is that of two men, or of one man and two women, whether the case relate to property or to other rights, such as marriage , divorce , agency , executorship , or the like. Ash-Shāfiʿī has said that the evidence of one man and two women cannot be admitted, excepting in cases that relate to property, or its dependencies, such as hire , bail , and so forth; because the evidence of women is originally inadmi ible on account of their defect of understanding, their want of memory and incapacity of governing, whence it is that their evidence is not admitted in criminal cases. The evidence of one woman is admitted in cases of birth (as where one woman, for instance, declares that a certain woman brought forth a certain child). In the same manner also, the evidence of one woman is sufficient with respect to virginity, or with respect to the defects of that part of a woman which is concealed from man. The principle of the law in these cases is derived from a traditional saying of the Prophet: “The evidence of women is valid with respect to such things as it is not fitting for man to behold.” Ash-Shāfiʿī holds the evidence of four women to be a nece ary condition in such cases. The evidence of a woman with respect to istihlāl (the noise made by a child at its birth), is not admi ible, in the opinion of Abū Ḥanīfah, so far as relates to the establishment of the right of heritage in the child; because this noise is of a nature to be known or discovered by men; but is admi ible so far as relates to the nece ity of reading funeral prayers over the child; because these prayers are merely a matter of religion: in consequence of her evidence, therefore, the funeral prayers are to be repeated over it. The two disciples, Muḥammad and Abū Yūsuf, maintain that the evidence of a woman is sufficient to establish the right of heritage also; because the noise in question being made at the birth , none but women can be supposed to be present when it is made. The evidence of a woman, therefore, to this noise, is the same as her evidence to a living birth; and as the evidence of women in the one case is admi ible, so also is it in the other. In all rights, whether of property or otherwise, the probity of the witne , and the use of the word ashhadu , “I bear witne ,” is absolutely requisite, even in the case of the evidence of women with respect to birth and the like. If, therefore, a witne should say, “I know,” or “I know with certainty,” without making use of the word ashhadu , in that case his evidence cannot be admitted. With respect to the probity of the witne , it is indispensable, because it is written in the Qurʾān, Sūrah lxv. 2 , “Take the evidence of two just men”; and also because the probity of the witne es induces a probability of the truth. If the defendant throw a reproach on the witne es, it is in that case incumbent on the Qāẓī to institute an enquiry into their character; because, in the same manner as it is probable that a Muslim abstains from falsehood as being a thing prohibited in the religion he profe es, so also is it probable that one Muslim will not unjustly reproach another. It is not lawful for a person to give evidence to such things as he has not actually seen, excepting in the cases of birth, death, marriage, and cohabitation. But if a person, in any of the above cases, gives evidence from creditable hearsay, it is requisite that he give it in an absolute manner, by saying, for instance, “I bear testimony that A. is the son of B . ,” and not, “I bear testimony so and so, because I have heard it ,” for in that case the Qāẓī cannot accept it. The testimony of any person who is property —that is to say, a slave, male or female—is not admi ible; because testimony is of an authoritative nature; and as a slave has no authority over his own person, it follows that he can have no authority over others, a fort i or i . The testimony of a person that has been punished for slander is inadmi ible, because it is said in the Qurʾān, Sūrah xxiv. 4 , “But as to those who accuse married persons of whoredom, and produce not four witne es of the fact, scourge them with four-score stripes, and receive not their testimony for ever; for such are infamous prevaricators,—excepting those who shall afterwards repent.” If an infidel who has suffered punishment for slander should afterwards become a Muslim, his evidence is then admi ible; for although, on account of the said punishment, he had lost the degree in which he was before qualified to give evidence (that is, in all matters that related to his own sect), yet by his conversion to the Muslim faith he acquires a new competency in regard to evidence (namely, competency to give evidence relative to Muslims), which he did not po e before, and which is not affected by any matter that happened prior to the circumstance which gave birth to it. Testimony in favour of a son or grandson, or in favour of a father or grandfather, is not admi ible, because the Prophet has so ordained. Besides, as there is a kind of communion of benefits between these degrees of kindred, it follows that their testimony in matters relative to each other is in some degree a testimony in favour of themselves, and is therefore liable to suspicion. So also the Prophet has said, “We are not to credit the evidence of a wife concerning her husband, or of a husband concerning his wife; or of a slave concerning his master; or of a master concerning his slave; or, lastly, of a hirer concerning his hireling.” The testimony of one partner in favour of another, in a matter relative to their joint property, is not admi ible; because it is in some degree in favour of himself . The testimony, however, of partners, in favour of each other, in matters not relating to their joint property, is admi ible, because in it there is no room for suspicion. The testimony of a person who has committed a great crime, such as induces punishment, is not admi ible, because in consequence of such crime he is unjust . The testimony of a person who goes naked into the public bath is inadmi ible, because of his committing a prohibited action in the exposure of his nakedne . The testimony of a person who receives usury is inadmi ible; and so, also, of one who plays for a stake at dice or che . The evidence of a person guilty of base and low actions, such as making water or eating his victuals on the high road, is not admi ible; because where a man is not refrained, by a sense of shame, from such actions as these, he exposes himself to a suspicion that he will not refrain from falsehood. The evidence of a person who openly inveighs against the Companions of the Prophet and their disciples is not admi ible, because of his apparent want of integrity. It is otherwise, however, where a person conceals his sentiments in regard to them, because in such case the want of integrity is not apparent. The testimony of ẕimmīs with respect to each other is admi ible, notwithstanding they be of different religions. The Imām Abū Ḥanīfah is of opinion that a false witne must be stigmatised, but not chastised with blows. The two disciples are of opinion that he must be scourged and confined; and this also is the opinion of ash-Shāfiʿī. The mode of stigmatising a false witne is this:—If the witne be a sojourner in any public street or market-place, let him be sent to that street or market place; or, if otherwise, let him be sent to his own tribe or kindred, after the evening prayers (as they are generally a embled in greater numbers at that time than any other); and let the stigmatiser inform the people that the Qāẓī salutes them, and informs them that he has detected this person in giving false evidence; that they must, therefore, beware of him themselves, and likewise desire others to beware of him. If witne es retract their testimony prior to the Qāẓī pa ing any decree, it becomes void; if, on the contrary, the Qāẓī pa a decree, and the witne es afterwards retract their testimony, the decree is not thereby rendered void. The retraction of evidence is not valid, unle it be made in the presence of the Qāẓī.