There are four major
divisions of the science of Fiqh: ’Ibâdât, Munâkehât, Mu’âmalât, and ’Uqûbât. Whe have written as much as necessary in our book, (Se’âdet-i Ebediyye, which is the Turkish
original of the five fascicles of Endless Bliss,) about the first three[1]. In the following chapters, I will
provide brief information on ’Uqûbât. It is stated as follows in the third part
of the book entitled Durr-ul-mukhtâr:
Punishments inflicted
by way of beating; amputation of an arm; nejm (or najm), which means stoning to
death; or killing are called ’uqûbât. ’Uqûbât means things that follow. This
naming is because the so-called punishments are impossed after a sin is
committed. There are three branches of ’uqûbât: hadd and ta’zîr and qisâs. Hadd is a punishment whose
measure has been dictated definitely in Islam. The punishment termed ta’zîr vary, depending on the
decision of the judge of the court of law. Doubt will cause a punishment of
hadd to be pardoned. A punishment of ta’zîr, by contrast, will become necessary
upon a doubt. Hadd is not applicable to a child, but a punishment of ta’zîr is.
Hadd can be inflicted only by the judge, whereas the husband of a woman or any
Muslim who sees the offender on the act is accredited to carry out the
punishment. Female witnesses will not be heard in a case of hadd. The accused
in a case of hadd will be imprisoned, whereas they will not be imprisoned in a
case of ta’zîr. Once a case of hadd has been brought to the court of law,
shefâ’at (intercession) or forgiveness is out of the question. A case of ta’zîr
will fall when the offender makes a tawba. A case of hadd also will fall if it
has not been heard by the judge yet.
Punishment of hadd is
applicable to five sins: Fornication; drinking wine; drunkennes with an alcoholic
beverage; qadhf (or qazf, i.e. accusing a virtuous person of fornication;)
theft; and brigandage. Punishments of hadd will become wâjib not when the
offence is committed, but when the judge decides. Infliction of a punishment of
hadd will not cleanse the sin. A tawba also is necessary for the cleansing of
the sin. The lexical meaning of ‘hadd’ is ‘prevention’. A door-keeper is called
‘haddâd’, because he prevents entrance.
---------------------------------
[1] ’Ibâdât
is dealt with in the fourth fascicle of Endless Bliss, while its fifth
fascicle covers the divisions munâkehât, -with the exception of
‘talâq’,- and mu’âmalât. ‘Talâq’ is dealt with in the fifteenth chapter.
1– HADD FOR A PERSON CAUGHT IN THE ACT OF
FORNICATION: If a Muslim or non-Muslim who is mukallaf[1] and who can talk
commits fornication in the Dâr-ul-Islâm by his or her own volition and without
being intimidated and gets caught in the act, whether drunk or sober, both the
woman and the man will have to be punished with hadd. When four male witnesses,
all four of them in the presence of the judge, say that they all have seen the
two people in the act of fornication, or when both the woman and the man
confess four times that they have committed the forbidden act, the guilt
becomes proven. Denial on the part of either one of them will overrule the
hadd. If they first confess and thereafter recant their confession, the hadd
will fall. [Penalties of death and punishments that involve imprisonment and/or
beating are to be done at the behest of the court of law and executed only by
the officials appointed by the State. Without the decision of the judge of the
court of law, no one can kill or beat another, and a person’s life or chastity
or honour can never be infringed upon. Even unbelievers cannot be molested. War
and jihâd are the State’s business. Without being commanded by the State or by
the commander, no one can make war or attack even an unbeliever. All these acts
are grave sins. In fact, hurting a Believer’s heart is a sin graver than
demolishing the Kâ’ba several times. It is not something possible for two
people committing fornication to be witnessed in the act by four people at the
same time. Such a coincidence would be possible only if the act were
perpetrated openly and publicly. For that matter, throughout the
six-hundred-year Ottoman aeon, not a single person bore witness to an offence
of fornication, nor even a single person was stoned to death for a proven guilt
of fornication. It should also be inferred from this fact that it would be a
separate sin to tell others about a sin that had been committed secretly. The
so-called punishment, therefore, has aimed at the spreading of fornication,
rather than at the perpetration of that abominable act. It has been intended to
prevent indecency.]
The punishment of hadd
to be inflicted on a male or female Muslim who is ‘muhsan’, i.e. who has been
married, is to stone them to death in an open space of ground; it will make no
difference if one (or both) of them is (or are) divorced or widowed. It is
mandatory that the stoning be started by the witnesses
---------------------------------
[1] Mukallaf means ‘(Muslim) who has reached the
age of puberty and discretion’.
-157-
altogether. If one of the witnesses dies
or disappears or does not partake in the stoning for any other reason although
he is present at the scene, the hadd will fall. If the punishment is being
inflicted upon an acknowledgement on the part of the culprits themselves, the
stoning will have to be started by the judge. Then, the other people, all of
them, join the stoning. After death the culprit will be washed and shrouded,
and the namâz of janâza will be performed. (Please see the fifteenth chapter of
the fifth fascicle of Endless Bliss for ‘namâz of janâza’.)
Punishment of hadd to
be inflicted on a person who is not ‘muhsan’ is flogging with one hundred
stripes. The stick (being used for flogging) should be without knots. The
flogging should not be so hard as to wound the culprit. The man is first made
to undress, with only a bath-towell on him. As he stands all the parts of his
body, with the exception of his head, face, and groin, will be flogged. The
woman’s underwears will not be taken off. Her thick clothes such as overcoat
and mantle will be taken off, she will be made to sit, and flogged. After the
flogging the judge will have the culprit ousted from the city for one year, if
he thinks it is necessary. Stoning and flogging are not applied at the same
time.
A dhimmî, (i.e. a
non-Muslim, e.g. a Christian, living in a Muslim country and under Islamic
laws,) is liable to all three of the branches of ’uqûbât, (i.e. hadd, ta’zîr,
and qisâs.) Only, hadd for (having drunk) alcoholic beverages will not be
inflicted on them. As for a harbî in the Dâr-ul-islâm, they are liable only to
the (punishments of) hadd called qazf and qisâs, which involve people’s rights.
If a dhimmî commits
fornication with a Muslim woman, he will not be punished with rejm (stoning to
death), yet he will be flogged.
If a person commits
fornication with a woman he finds in his bed because he thinks she is his wife;
or if a female dhimmî commits fornication with a harbî; or if a male dhimmî
commits fornication with a female harbî, all these three people are liable to
hadd. The harbîs in the latter two cases, (i.e. the male harbî in the second
case and the female harbî in the third,) are not liable to hadd. It is stated
as follows in the book entitled Fatâwâ-i-Hindiyya: “A person who commits fornication in return for a payment,
[e.g. a person who commits fornication with a prostitute in a brothel,] he will
not be flogged as a punishment of hadd, according to Imâm A’zam Abû Hanîfa. He
will have to pay a mahr-i-mithl. (Please see
-158-
the paragraph under the heading MAHR in the twelfth chapter
of the fifth fascicle of Endless Bliss!) Both of them will be punished with ta’zîr and kept in prison
until they make tawba. According to the Imâmayn, (i.e. Imâm Abû Yûsuf and Imâm
Muhammad,) both of them will be punished with hadd. Another person liable to
hadd is one who commits fornication by paying property unconditionally. If a
person says (to a woman), ‘Take this money! Let me have sex with you in
return,’ he will not be punished with hadd. For, they will have interacted by
way of a nikâh called mut’a (temporary marriage). Being a doubtful interaction,
that kind of nikâh will not incur hadd. Another case that will not necessitate
hadd is that in which a man pays money to a woman and says, ‘This is your mahr.’”
All these acts, however, are harâm. They are grave sins. That kinds of
fornication not liable to hadd are equally harâm is written in the book
entitled Berîqa. The money taken by
the woman (in such cases) will be harâm for her. [Shir’a-t-ul-islâm]. Pederasty, or sodomy, is not
liable to hadd; yet people caught in the act will be punished with ta’zîr by
way of imprisonment and battery. A person who makes it a habit will be put to
death. It is written in Fatâwâ-i-Khayriyya that if a person is intimidated into an act of sodomy it will be
permissible for him to kill (the person intimidating him) if he sees that there
is no other way out. Hadd for fornication is not applicable in the Dâr-ul-harb.
If manual ejaculation,
[i.e. masturbation,] is done for mere pleasure, it will be harâm, and a person
who does so will be punished with ta’zîr. It will be permissible to do so for
relief, and wâjib when there is the danger of fornication. [Ibni ’Âbidîn,
section dealing with things that will break one’s fast]. There is no sodomy in
Paradise. Paradise is no place for foul acts.
[In Christian
countries women and girls go about with their heads, arms, and legs exposed.
They lure men into acts of indecency and fornication. As the wife is at home
doing the cooking, laundering, and house-cleaning, her husband is out or at
work enjoying himself with a naked woman and committing all sorts of indecency,
including fornication. He is mostly thoughtful and worn out when he comes home
in the evening. Totally absorbed in wicked thoughts, he no longer even turns to
look at his wife, whom he in those good old days liked, chose, loved, and
married. His wife, disillusioned and forlorn in the wasteland of conjugal
negligence, as the evening is the time of merriment she has been looking forward
to throughout a tiring day, winds up in the talons of a neurosis. The family
breaks up. The man, with his
-159-
looks fixed on the woman out in the street, dumps his wife as if
she were a piece of dirtied underwears, and starts a cohabitation with someone
else. This ineluctable corruption breeds thousands of ruined men and women
yearly, and the children they leave homeless develop into immoral anarchists,
contributing to the decomposition and collapse of the entire nation. The harm
that the uncovered, perfumed, and ornamented women wandering around cause to
young people, to the entire nation, and to the State, is graver and more
horrifying than the harm caused by alcoholic beverages and narcotic poisons. Allâhu ta’âlâ has commanded women
and girls to cover themselves lest His born slaves should get caught in
disasters in the world and vehement torments in the Hereafter. Sad to say,
however, some people who have been enslaved by their nafses and sensuous
desires have been calling the commandments of Allâhu ta’âlâ ‘retrogression’, and the aberrant and
eccentric activities of disbelievers, ‘modernism’. Some of those
pseudo-modernists who have obtained an underserved diploma each by way of
fellow-favouritism and thereby shared some convenient allocations among
themselves are hooting like owls and exploiting every opportunity for attacking
Islam. With the applause they receive for their heroism! and the financial
contributions they muster from Chirstians, Jews, and communists, our
sempiternal enemies, they are misguiding young people by having recourse to all
sorts of stratagem. May Allâhu ta’âlâ give them wisdom! May He bless them with discretion good enough
to see right from wrong!]
2-
HADD FOR ALCOHOLIC
BEVERAGES:
A Muslim who drinks a drop of wine will deserve the punishment of hadd. When
the beverage consumed contains water more than fifty percent, as well as for
all other (alcoholic) beverages (other than wine), the hadd becomes applicable
when the person becomes intoxicated. It has been stated unanimously by scholars
that spirit is (a kind of) qaba najâsat like wine. However, scholars have
disagreed on whether this liquid, (when it is drunk,) will incur the same hadd
as applied for wine and other alcoholic beverages. A hadîth that is quoted in Sahîh-i-Muslim reads: “Any beverage that will
intoxicate is harâm like wine.” It is harâm to drink even a drop of any alcoholic beverage.
Supposing a certain person is seen in a state of drunkenness or his mouth
smells of wine and that he has been drinking an alcoholic beverage is testified
by two eye-witnesses or confessed by himself after he sobers up, flogging of
hadd will be inflicted on him as he is in a sober state.
-160-
Hadd for (having
drunk) an alcoholic beverage is flogging with eighty stripes.
Henbane is mubâh,
(i.e. Islam premits a Muslim to consume it.) For, it is a plant. Yet it is
harâm to consume it as much as you become intoxicated with it. That it is harâm
to consume a small amount of something a large amount of which would intoxicate
the consumer, is an Islamic rule that is intended for liquid substances. There
is not a single Islamic scholar who has been heard to say that “since solid
substances such as saffron and ambergris would intoxicate a person who consumed
a large amount of (any one of) them it is harâm to consume even a small amount
of them.” Nor has any scholar said, “najs,” or “khabîth,” about any of those
substances or about henbane. Poisonous plants are halâl when the amount of them
eaten is small, and it is harâm to eat a large amount of (any one of) them.
After the application
of hadd for (one of the) offences pertaining to alcoholic beverages or
fornication, repetition of the offence will necessitate repetition of the
application of hadd. Information about an offence that was committed more than
a month earlier while it could have been done immediately after the time of the
offence, will be acceptable only when a hadd for (an offence called) qazf is
involved. A confession on the part of the guilty person is always acceptable.
3-
HADD FOR QAZF: Qazf means ‘to
fling’, ‘to cast’. In Islam it is a grave sin to cast an aspersion pertaining
to fornication on a chaste and married man or woman. A person guilty of qazf
will be flogged for hadd upon the demand of the person suffering from the qazf.
If qazf has been perpetrated against a dead person, the perpetrator will be
flogged for hadd upon a demand on the dead person’s father or child. With
respect to proving and the number of stripes, it is identical with hadd for
alcoholic beverages. Perpetration of qazf against a Muslim incurs flogging for
hadd even if the perpetrator is a harbî. If a person says to another person,
“Yâ zânî ‘(O you, fornicator),” and the second person retorts, “It’s you who is
so,” both of them will be flogged for hadd. [The two people’s using their own
language will make no difference.]
4-
HADD FOR THEFT (SIRQAT): Sirqat means to take
someone else’s property secretly, (i.e. without them knowing about it.) It is
harâm to take someone else’s property, regardless of the amount, unfairly and
without their consent, in which case the
-161-
guilt perpetrated will be either a theft or an extortion. If a
person, a man or a woman, a slave or a master, a Muslim or a dhimmî, who is
mukallaf, i.e. who has reached the age of discretion as well as that of
puberty, and who can see and talk, secretly takes, all at once, ten silver
dirham coins, or any other equivalent piece of personal property that is
mutaqawwim[1] in all heavenly religions and which will not taint with time,
from its Muslim or dhimmî owner’s real estate, i.e. from a place that is not
permissible for others to open or enter without its owner’s permission; if this
event takes place in the Dâr-ul-islâm; and if the owner of the property sues,
the right hand of that person will be cut off by the wrist joint, and the
truncated part will immediately be dipped into boiling oil lest it should
bleed. The amputation will not be done in a very hot or cold weather or when
the culprit is heavily ill. Instead, he or she will be imprisoned. The
punishment will be executed when the weather becomes better or when the culprit
recovers. If a person commits a second theft, this time his left foot will be
cut off by the ankle joint. If he does a third thieving, limb-amputation will
leave its place to imprisonment until he makes tawba. The dirham here weighs
fourteen qirats, or 3.36 grams; hence, ten of them weigh seven mithqâls. Hence,
the nisâb of sirqat (theft) is silver coins that weigh thirty-three grams and
sixty (33.60) centigrams.
[At places where other
currency is in circulation instead of silver coins, seven grams of silver is
equal to one gram of gold. In other words, gold is seven times more valuable
than silver of the same weight. The value of 33.6 grams of silver is equal to
4.8 grams, or one mithqâl of gold, which in turn is two-thirds a gold coin in
value. According to the three imâms, i.e. Imâm Mâlik and Imâm Ahmad bin Hanbal
and Imâm Shâfi’î ‘rahmatullâhi ta’âlâ ’alaihim ajma’în’, the nisâb of sirqat
(theft) is three dirhams, or seven grams and twenty-six centigrams of silver,
or a quarter dinar, i.e. 0.87 grams of gold. As is seen, stealing something
less valuable than 0.87 grams of gold will not incur hand-amputation in any of
the four Madhhabs. Punishment inflicted for a theft of something below that
value will be cruelty.]
If a person steals
meat, vegetables, fruit, milk, his or her hand will not be cut off. For, these
things will taint with time. If a Muslim or a dhimmî steals a Muslim’s wine or
other alcoholic beverage, their hand will not be cut off. If a dhimmî steals
another dhimmî’s
---------------------------------
[1] Please see the twenty-ninth chapter of the
fifth fascicle of Endless Bliss for ‘mutaqawwim’.
-162-
alcoholic beverages or
pork or lesh, his hand will not be cut off.
If one person steals a
nisâb amount of property from several other people, his or her hand will be cut
off. If two people steal a nisâb amount of property from one person, their
hands will not be cut off.
Theft becomes a proven
guilt when the thief confesses his own theft once, or when two ’âdil[1] and male witnesses
inform about it. The accused will be kept in confinement until the
investigation is completed. For, people accused with an offence involving a
punishment of hadd will not be released on bail. It is permissible to force the
accused to confess by beating him; the same rule applies to recidivists.
If, after the theft has becomes a proven offence by the thief’s confessing or by the testifying of the
two witnesses, the owner of the stolen property says that his property was not stolen by that person or that he had given his property as a present or an amânat
to that person or that the witnesses are lying, that person’s hand will not be cut off. It is an act of sunnat for the judge to suggest his saying so. However,
the thief’s hand will still be cut off if the owner of the property says that he has forgiven the thief. For, the punishment of hadd is a right that belongs to
Allâhu ta’âlâ. A slave, (i.e. man, creature,) cannot forgive it. If the two witnesses testifying a theft perpetrated
by a Muslim are disbelievers, his hand will not be cut off. It is compulsory that the two witnesses be present at the scene as the hand is being cut off.
When a person steals
precious stones, his hand will be cut off. Hadd is not applicable to the
following cases of theft: Things that are valueless or that can be obtained
without spending money; things like firewood, grass, fish, birds, including
poultry, game, lime, coal, flower-pots, glass, [the last two being easily
breakable,] bread, milk, all sorts of food, alcoholic beverages, musical
instruments, crosses, tools for play, doors, shoes from a mosque, copies of the
Qur’ân
al-kerîm,
children, books of any sort, dogs; grave-robbing; digging up a treasure buried
in the open country; robbing places such as tombs, public places, places
belonging to a waqf or to the Beyt-ul-mâl; stealing one’s due or something
equivalent from one’s debtor. For instance, if your debtor owes you gold, it
will be permissible to steal silver (with the same value).
---------------------------------
[1] If a Muslim who does not openly commit a
grave sin and is not a habitual sinner in venial matters, he is an ’âdil Muslim.
-163-
According to Imâm Shâfi’î ‘rahmatullâhi
ta’âlâ ’alaih’, instead of the money that your debtor owes you, you may take
anything else that is of the same value and which is available of your debtor’s
property. In case of a darûrat, it is permissible to imitate the Shâfi’î
Madhhab.
If a person steals
from his zî-rahm-i-mahram[1] relative, his hand will not to be cut off even if the property
he steals belongs to a third person. Yet it will be cut off if he steals from
his mahram relative by way of milk tie. and it will be cut off if he steals
property belonging to his zî-rahm-i-mahram relative from a third person’s
house.
If a husband steals
from his wife or a wife steals from her husband or a person steals from the
husbands of their female zî-rahm-i-mahram relatives or a man steals from his
wife’s male zî-rahm-i-mahram relatives; hand-amputation is not applicable in
all these cases. The people exemplified in the last cases are called as-hâr (relatives through
marriage). Hand-cutting will not be inflicted if a person steals from the
property of ghanîma(t) or from public places like public baths and shops, or if
a guest steals from his host or if a burglar gets caught before he manages to
take the goods he has stolen out of the house.
Punishment of hadd
will be executed if a person makes off with something belonging to someone else
at a public place, e.g. a mosque, a train, a ship, and a bus, even if the theft
is done as the owner is asleep.
If a person steals
something by inserting his hand into a box or into someone’s collar or pocket
or sleeve, his hand will be cut off. If a burglar breaks into a house and
gathers the things together and thereafter someone else comes in, shoulders the
burglar with the things he has stolen, and carries them out, only the burglar’s
hand will be cut off. Likewise, if a bird smeared with najasat alights on
someone performing namâz, his namâz will not be broken (on account of the
najâsat. Please see the sixth chapter of the fourth fascicle of Endless Bliss for ‘najâsat’). For,
the najâsat is not directly on the person performing namâz. It is on the bird
that alights on him.
---------------------------------
[1]
Please see the paragraph headed WOMEN WITH WHOM NIKÂH IS
NOT PERMISSIBLE in the twelfth chapter of the fifth fascicle
of Endless Bliss for ‘zî-rahm-i-mahram relatives’, and also the
seventh chapter of the current fascicle for ‘relatives by way of milk tie’.
-164-
Once a thief s hand
has been cut off, he will no longer (have to) pay for the property he stole. If
the stolen property still exists, it will be returned to its owner. If the thief
has sold it, it will still be given to its owner, who will thereafter pay the
purchaser. It is harâm for the thief to use that property. If the purchaser has
used the property, its owner will ask the purchaser to pay him its equivalent.
And the purchaser, in his turn, will ask the thief to repay him its equivalent.
Supposing a burglar
breaks into your house and takes your property away; it is permissible to fight
the burglar even if the property (being stolen) is worth less than the amount
of nisâb. Fight should be stopped if the burglar gives up and leaves the
property he has been stealing. If you kill the burglar (during the fight), then
you will only have to pay diyat (blood money. Please see the thirteenth
chapter.)
5- BRIGANDRY: If one or more people,
men or women, Muslims or dhimmîs, by day or by night, attack with arms Muslims
or dhimmîs on highways that connect towns or cities in the Dâr-ul-islâm, these
people are called ‘qâti’i tarîq’, or brigands, or highwaymen. If they are
caught before they have perpetrated any robbery or homicide, they will be
beaten, and kept in confinement until symptoms of penitence and tawba are
observed on them, otherwise until death.
If they have done the
robbing, each and every one with a share as much as nisâb in the robbing will
be punished with hadd, which, in this nonce, is cutting off the right hand and
the left foot, or the other way round.
If they have
perpetrated homicide instead of robbing, they will be killed for hadd. The walî[1] of the victim of the homicide is not entitled to forgive the culprit. For, noone is accredited with
forgiveness in a punishment of hadd. To forgive (someone who has deserved hadd) means to refuse to obey
Allâhu ta’âlâ.
If they have both
stolen the amount of nisâb and perpetrated homicide, the President of the state
may inflict any one he choses of the following six ways of punishment:
1- He cuts off one of
his hands and one of his feet and thereafter he kills him.
---------------------------------
[1] Please see the initial few pages of the twelfth chapter of the
fifth fascicle of Endless Bliss for ‘walî’.
-165-
2-
He cuts off his hand and foot and hangs
him.
3-
He kills him without cutting his and and
foot.
4-
He kills him and then hangs him.
5-
He hangs him without cutting off his hand
and foot.
6-
He erects a post on the ground, and fixes
to it two horizontal posts parallel to each other. He ties the culprit’s two
hands to the upper horizontal post and his two feet to the lower one. The
culprit is killed with a bayonet thrust into his abdomen. Three days after
death, the culprit is untied and delivered to his kinsfolk. A woman will not be
hanged. If the goods (robbed) are obtained, they will be returned to their
owners. The goods that have perished will not be compensated for.
If the brigands have
robbed a nisâb amount each and perpetrated wounding, hand and foot will be cut
off, but no punishment will be imposed for the wounding. For, amputation and
compensation are not co-applicable.
If they have not
robbed goods more than the amount of nisâb and have only perpetrated wounding
instead of homicide, no hadd will be inflicted. According to a report coming
from Imâm Zeyla’î ‘rahmatullâhi ta’âlâ ’alaih’ (d. 743 [1343 A.D.], Egypt,) no
hadd will be inflicted if they have perpetrated homicide, either, when the
property robbed is below nisâb. For, the purpose of brigands is to take away
property by way of intimidation. If there has been homicide in addition to
robbery, it will be concluded that they had to kill to take away property. If
they have perpetrated homicide without taking away any property, it will mean
that their purpose has been to kill and not to rob, and the hadd for homicide
will be inflicted on them. Although no hadd will be inflicted on them despite
the perpetration of homicide because the property robbed is below nisâb and
therefore it has been concluded that their aim was not homicide, the
punishments of qisâs and diyat will have to be imposed and they will have to
compensate for the goods they have taken away.
If brigands are killed
during the fight, their corpses will not be washed and the namâz of janâza for
them will not be performed. (Please see the fourteenth and the fifteenth
chapters of the fifth fascicle of Endless Bliss.) If they are killed thereafter with the punishments of hadd
and qisâs, then they will be washed and the namâz of janâza will be performed.
If the brigands have
taken away property and perpetrated
-166-
homicide and yet made tawba before being caught, or if the
culprit is below the ages of discretion and puberty or is a zî-rahm-i-mahram
relative of one of the travellers, or if some of the travellers rob the others,
or if the robbing has been perpetrated in an urban area, the hadd will not be
inflicted. They will compensate for the harm they have caused. In other words,
if there has been homicide and wounding, the (victim’s) walî may demand qisâs.
If the property (robbed) has not perished, the robber will return it. If it has
perished, he will pay its value.
[The seventy-sixth
article of Majalla reads: “A person who files a lawsuit in the court will be
demanded to produce a witness. If the defendant denies, he will be made to
swear an oath.” First the plaintiff will be asked what his complaint is. Next,
the defendant will be asked to answer the accusation. If the defendant admits
the guilt he is being accused of, the judge will decide that the plaintiff is
right. If the defendant denies the guilt, the judge will ask the plaintiff to
produce two witnesses. If the plaintiff proves his accusation by producing two
witnesses, the judge will ask the defendant his opinion about the witnesses. If
the admits the witnesses, the decision will be for the plaintiff. If the
defendant says that the witnesses are lying, the judge will ask two people he
trusts about the witnesses, first by written correspondence, and then verbally
at the court of law. If the witnesses turn out to be ’âdil Muslims, the
plaintiff will win the case. If they do not turn out to be ’âdil, the plaintiff
will be demanded to produce (two) other witnesses. If the plaintiff cannot find
other witnesses, he will be asked if he demands that the defendant swear an
oath. If he does, the defendant will be made to swear an oath. If the plaintiff
does not, or if (he demands, and) the defendant swears an oath, the judge will
dismiss the case. If the defendant will not swear an oath the plaintiff will
win the case. A disbeliever or a renegade (murtadd) or a munâfiq cannot be a
witness or a judge in a case against a Muslim. Decision made by such a judge
will not be sahîh (valid).
The seventy-seventh
article reads: “A person who says that a certain thing has changed will be
asked to produce a witness. One who says that it has not changed will be made
to swear an oath.” Supposing a person who has extorted something says that it has
perished and wants to pay its value, and the owner of that thing says that it
has not perished and wants his property back; if the person who has extorted
the property produces two witnesses he will win the case.
-167-
The seventy-ninth
article reads: “A person who admits and confesses his guilt will suffer the
punishment. His recanting will not be heeded.” The sixteen hundred and
seventy-sixth [1676] and later articles read: “Beyyina means hard evidence,
documentary proof. Tawâtur is information unanimously testified by a jamâ’at
(group of Muslims) whose agreement on a lie would be quite unthinkable. Justice
is not something required to exist in tawâtur. Tawâtur is an expression of
’ilm-i-yaqîn (definitely true, positive knowledge). ‘Tahlîf’ means to
administer an oath to one of two opponents.
“Shahâdat (testifying)
means to witness to that one person has a right on another by saying, ‘I
testify that...’ before the judge and in the presence of the two opponents. In
matters pertaining to rights among human beings, two men or one men plus two
women is the prescribed number of witnesses. A greater number of witnesses will
be of no value. Witnessing performed outside of the court of law will not be
valid. Something that is being testified has to be something seen. It is not
permissible to bear witness by saying, ‘I have heard that... .’
“For bearing witness
in matters pertaining to rights among people, it is essential that a lawsuit
should have been brought. Beyyina that is counter to what is known (positively)
as tawâtur is not acceptable. ‘Beyyina’ means ‘existence of witness(es)’.
Beyyina is intended for acknowledging a right. Witnessing based on a denial of
something is impracticable. There should not exist any hostilities between the
witness and the defendant. It is essential that the witness be an ’âdil Muslim.
’Âdil means (person) whose pious acts are more than his sinful acts. If there
is a discrepancy between the accounts given by the witnesses, their witnessing
will not be accepted. A witness who disavows what he has testified will be
punished with ta’zîr and will have to compensate for the property on which a
court decision has been made.”]
WITNESSING: It is stated as
follows in the book Terjemet-ul-mukhtasar, (by Jelâl-ad-dîn Mahmûd bin Abû Bakr,) which is a Persian
commentary to Nikâya: A person who informs about a right that one person has on
another is called a witness. A witness testifies at the court of law a right about which he
has been informed by the person who has the right (belonging to a certain
person) on himself or which he has heard from someone else. Information is
obtained by one of the following three ways: a) Witnessing, which we have
already explained. b) Informing about
-168-
a right which you have on a certain person, which is called bringing a lawsuit. c) Informing about a
certain person’s right that you have on yourself, which is called confession. Witnessing is done
verbally, not by way of a written correspondence. [End of Waqf.]
It is wâjib to appear
as a witness in the court of law upon the plaintiff’s demand. It is not
permissible (for a witness) to withhold what he knows from the qâdî, [i.e.
judge.] In the kinds of punishment called ‘hadd’, however, it is commendable to
withhold information. The number of witnesses required is four men for (hadd
for fornication (and adultery), and two men for qisâs (retaliation) and for
other punishments of hadd. Female witnesses are not acceptable in hadd and
qisâs. In matters pertaining to bekârat (maidenhood) and welâdat (birth) and to
other defects of womanhood one woman will suffice as a witness,
while matters pertaining to other rights will require two male, or one male
plus two female, witnesses. The witness has to be ’âdil and to say, “I bear
witness, (or I testify,)...” A Muslim who does not commit a grave sin and who
is not a habitual venial sinner and whose pious acts are more than his sinful
acts is an ’âdil one. That a person who amuses others by dancing or singing [or
playing musical instruments] cannot be a witness is written in the seventeen
hundred and fifth (1705) article of Majalla. It is a grave sin to vituperate a Muslim. Doing so will divest
one of one’s ’adâlat, (i.e. a person who does so will no longer be an ’âdil
Muslim.) For that matter, Wahhâbîs and Shiites will not be accepted as
witnesses. In matters other than hadd and qisâs, witnesses who testify what
they hear from others will be acceptable, in which case the required number of
witnesses will be double. It is a grave sin to bear false witness. It is stated
as follows in the sixteen hundred and sixtieth (1660) article of Majalla: “When cases of dues
on account of loans or sales or rentals or (lendings termed) vedî’a or ’âriyat
or taxes or real estates or revenues or legacies are discontinued for more than
fifteen hijrî years, they will not be heard if the debtor denies his debt. That
is, the period of the legal action will have expired, a case which is
technically termed ‘murûr-i-zemân’. However, this will not cause the creditor
to lose his right. That is, a debtor who acknowledges his debt will always have
to pay it.”
It is permissible for
two people to appoint one or more Muslims to arbitrate between them when they
fail to reach an agreement in the settlement of a right between them. This
arbitration is termed ‘tahkîm’. It is essential that the arbitrator be an ’âdil
Muslim knowledgeable in the science of Fiqh. [Rûh-ul-Majalla: 1793.] In
-169-
that case, they will have to act in obedience to the judgment
made by the arbitrator. The person they are to appoint should possess the
qualifications of a qâdî (judge). A disbeliever or a fâsiq person cannot be
appointed as an arbitrator. Tahkîm is not permissible in punishments of qisâs
and hadd. A decision made by the arbitrator will not comprehend a third person.
For instance, if he decides that a defective commodity (that has been sold) be
returned to the person who has sold it, that seller cannot (also) return that
commodity to the person who had sold it to him. The arbitrator will make his
decision upon the acknowledgement or withdrawal on the part of one of the
(arguing) parties or after hearing the witnesses. It is not permissible to
arbitrate for one’s siblings or parents or children or wife. Either party may
dismiss the arbitrator before the decision. Once he has made a decision, he
cannot dismiss him or reject his decision as long as it is licit and will not
cause a fitna. [Majalla: 1841.]
-170-