Syariah Evidence and Procedure. (short notes)
- 1. C5 SYARIAH EVIDENCE - AL - IQRAR EVIDENCE BY ADMISSION OR CONFESSION . D . Elements . Authority . Types of admission . Conditions (9) . Confessions for Hudud cases . Retraction of Admission . Complaints . Iqrar in state of dying . Effect of Admission . Confession of co-accused ♦ D . Literal: admission/recog. . Technical: Form of admission to prove a fact in order to establish a right. Effect only to maker himself for what he admitted. . S.17(1) SCE (FT) ACT 1997 . Prof Anwarullah: Confession(cri.)statement,oral,written admission(general)statement, oral/written. . Art. 1572 Al Majalla: stat by a person admitting claim of some other person against him - either admittee or admitted ♦ 3 ELE - Muqirrun - maker of iqrar - Muqirrun Lahu - person benefiting from iqrar - Muqirrun bihi - sm of iqrar ♦ AUTHORITY . ALI IMRAN 3 : 81 - bearing wit. . AL NISA 4 : 135. - bearers for justice . AL QIYAMAH 75:14-15 - human as eye-wit . (H) Maiz’s case: adultery - admit - stoned . (H) Ghamidiah’s case: pregnant - fornication - stoned . (H) Unais’ case: zina - stoned . Ijma: all jurist unanimous that iqrar is a proof in islamic evid. ♦ TYPES OF ADMISSION (3) . S. 17(1) SCEA: 1. Oral: made by those capable 2. Writing: may be in writing, could be official/not . Art 69 Al-Majalla: correspondence takes the place of an exchange conversation. 3. By signs . Art 70 Al-Majalla: sign of dumb person can be recog. (e) unacceptable in few circum. (paternity) . Shafie, Malikis: acceptable, H √ . Hanafis: H ✕ because may contain doubt ♦ RETRACTION OF ADMISSION . (H) Maiz: escape - repent - In civil and H: not allowed to retract qisas, taazir, civil. . Art 1588: No person may validly retract - priv. Rights - bound by his admission. ♦ PRIOR COMPLAINTS . Ijma: must be complaints before accepting admission in theft & qisas. Without it, pardon is assumed for the defendant. . Ijma: no prior complaint if pure rights of Allah. It is duty of Muslims to safeguard rights of Allah. . (H) Maiz case . Abu Yusuf, Malik: in H, no complaint needed, H √ ♦IQRAR IN DYING STATE GR - healthy is not a req. . Art 1595: MW cannot deal outside home, if FW unable to deal with her dom. duties, death having occurred before the expiration of one year by reason of illness … . Art 1598: made under sickness on prop or debt, then dies, validity depends upon rati. By heirs. If made debt to heirs and heirs permit; valid. If owed a debt to a person not heir, then iqrar valid and enforceable. . S. 19 SCEA: ♦EFFECT OF ADMISSION A person is L for his own confession. Confession binds maker. Iqrar only accepted if made before judge, or if outside, in front of 2MW. . “One is held respon. For his confession” . “Confession is intransitive evid” . S. 17(2), (3) SCEA ♦CONFESSION OF CO-ACCUSED Confession only for confessor himself only, not proof for co-accused. However, co-accused may be found guilty because of other compelling evid. Which nail the accused. . (H) Maiz case: . (H) Sahl ibn Sa’d: fornication - man came to Prophet - Prophet asked the woman - she denied - man inflicted, woman got away with it . Imam Malik, Shafie, Ahmad: man admit zina w/o woman: H on man. . Hanafi: one party, other denies, no H for both.
- 2. ♦ CONDITIONS 1. SOUND Insane/minor is unaccountable. . (H) 3 person exempted from L . Art 1573 Al-Majalla: valid - sound . S. 18(1)(a) SCEA __________________________________ 2. BALIGH . (H) 3 person exempted from L . (e) minor allowed if parents permit, same status as adult. But only in muamalat only. . S. 18 (1)(b), (2) SCEA ___________________________________ 3. FREE MAN By slave acceptable in all cases including hudud and qisas if permitted by master. ____________________________________ 4. VOLUNTARILY MADE . (H) Ibn Abbas: “Allah has forgiven my ppl for mistakes and forgetfulness, and whatthey are forced to do.” . Art 1575 Al-Majalla: Maker - free will - valid . s. 18(1)(e) SCEA ______________________________________ 5. FREE FROM TUHMAH/SHUBHAH An iqrar from non-M accepted as long as free from any of the elements. ______________________________________ 6. SERIOUSLY MADE Iqrar made playfully is inadmissible. ______________________________________ 7. NOT UNDER INTERDICTION An iqrar by those refrained under law is void. . Art 1576: Maker shall x be under interdiction . s. 18(1)(f) SCEA . 3 types Interdiction: insane, safiih, bankrupt . Ijma: accepted in cri. Or H but not civ. ______________________________________ 8. MAKER AND SM MUST BE CLEARLY KNOWN Identity must be known. Rep. is acceptable. Iqrar must be explicit, clear. Maker must ascertain his iqrar nature, conseq. . Maiz case ______________________________________ 9. FULL UNDERSTANDING Maker should have full understand of iqrar, nature, effect. . Maiz case ♦ CONFESSIONS FOR HUDUD CASE Z-I-N-A . Hanafi: must be made 4 times in 4 sep. times Iqrar made in front judge in Ct. Otherwise, unjustified. orally only. No gesture/signs. . Hambali: one time sufficient . Maiz case: turn his face . Maliki, Shafie: one iqrar sufficient. More iqrar wouldn’t strengthen/weaken evid. . Unais case. . Shafie: signs, by dumb admissible. T-H-E-F-T & R-O-B-B-E-R-Y . Hanafi: one iqrar suffice. Abu Hanifah: if no claim by owner, iqrar inadmissible. . Abu Yusuf: number of iqrar depends on number of wit. If thru testimony. Since needs 2MW, therefore iqrar is 2. Claim by owner is not a req. M-I-N-U-M A-R-A-K . Majority: single suffice. . Abu Yusuf: depends on num of W . Abu Hanifah, Yusuf: iqrar made in presence of smell. Without it, ✕ H. . Majority: no smell, H √
- 3. C6 SYARIAH EVIDENCE: AL YAMIN (OATH) . Definition . Authority . Categories of oath (2) . Purpose of oath (2) . Conditions (10) . Types of oath (3) . Refusal . Returned Oath ♦ D . Literal: right side, al-halaf, istihlaf, qasam . Technical: solemn pron. in name of Allah to affirm truth in statement or to strengthen allegation. Oath to be considered in case where no evid. Available. Ifa person askedto bring evid. And failed to produce one, he may be required to deny claim under oath. Ct. shall ask for person to take oath, not by anyone else. ♦AUTHORITIES . AL MAIDAH 5:89 - take oath as God ask you . AL NAHL 16:91 - God as guarantor . YUNUS 10:53 - Say yes by my lord . AL-TAGHABUN 64:7: Yes indeed by my lord . (H) Ibn Umar: take oath by swearing on Allah . (H) Ibn Abbas: taking of oath lies upon who denies . (H) Forbidden to take O on ancestors name. . (H) If take on other than Allah’s name, shirk. . (H) Besides shirk, also kafir. . (H) No “inshaAllah” as it invalidates the O. . Art 1743: should it be intended to put one of the parties on his oath, he shall be causedto take the oath in the name of Allah. . S. 72 SCEA ♦CATEGORY OF OATH 1. O taken out of court GR - cant be used as means of proof. However, maker still L if it is not true. 2. O taken in court To be taken when P fails to produce evid. ♦PURPOSE OF OATH Prove fact & deny fact ♦CASE ADMIN. Rights of man Prop cases Qisas cases ♦ CONDITIONS OF VALID OATH 1. Islam 2. Mukallaf - sane/puberty 3. Intention 4. O in name of Allah 5. D must deny claim of P 6. P request Judge to make order of O 7. O shall be taken personally 8. O not for rights of Allah cases 9. O for admissible cases only 10. P does not have conclusive evid. ♦REFUSAL TO TAKE THE OATH Hanafi : refusal amount to admission. Maliki, Syafie, Ahmad: No judgment to be given against defendant because O is weak of proof. Must be corroborated with P’s O even D did not request. In D refusal, O returned to be taken by P. When P take O, favour on him. If P refuse, case struck off. . Al Maidah 5:107- . (H) Umar: judgment based on Yamin Al- Mardhudah . Zahiri school: no O shall be returned, D shall be admit until admit his O. . S. 87(2) SCEA ♦THE RETURNED OATH (D refused, return to P) Issue: Whether accepted or not? 1. Refusal cannot be prejudice to d’s case. O shall be return to P. 2. J shall be against him. No return to P. Conclusion: returned O admissible (taazir only) (inapplicable for H & qisas)
- 4. ♦ TYPES OF OATH (3) 1) O by W Taken BEFORE giving E but taken in form of tazkiyyah and to strengthen testi. . Maliki : If there is any doubt in W, ct may ask W to take O. . Hanafi: If W is going to give Shahadah, no need to take O. Credibility of W established. _________________________________________ 2) O by D O taken on ORDER of a judge to strengthen his defence. Also known as: - Original O ( Y asliyah ) - Mandatory O ( Y wajibah ) - Denying O ( Y rafiah ) If D took O after P failed to give evid, D will be acquitted. Issue: Whether P entitled to tender further evid. After taking of O. i. Subsequent evid. Can be admitted. O is a weak argument and act as a substitute evid. When there is no evid. Tendered by P. . Al Khattab: “A lying O is more deserving of rejection than trustworthy evid.) . Hanafi: rare case because D will only be allowed to take o when P failed to produce evid. . Imam Malik: P allowed but if purposely conceals evid., he will not be allowed to give evid. . Zahiri school: P cannot adduce evid. Anymore. O has overrides right of P. . Art 1753: If P has said he has no W, he will not be allowed to call any other witnesses as change of mind. _________________________________________ 3) O of P To set aside any doubts against him/prove O which is returned to him. Effect of P O: Jumhur except Hanafi. When P had taken O, J can be passed in P’s fav. Three types : ★ YAMIN AL - JALIBAH O to support P’s claim and allegation. 5 situ: i. P’s O and 1 W ii. Y al-mardhudah iii. Yal-qasamah (killer unknown, Oby 50 persons) iv. Lian v. Art 1774: a person whom has been entrusted forsafekeeping shall make Oas anyq. To release him from L. ★ YAMIN AL - TOHMAH O taken by P to deny allegations against him. ie counterclaim, if D objected P’s claim, P can ask permission from Judge to take this type of O. . Maliki, Zaidiyyah: accept this type of O ★ YAMIN AL - ISTIZAR O taken by P in a request made by qadi to discharge any tohmah against himself after submitting his evid. In the course of his suit. It serves to perfect his claim/allegations. Usually applied in case of missing person (absence of husband in court case) . Ibn Qayyim : rely on practice of saidina Ali by ordering P to take O although produced 2 W . Maliki: applicable in dharurat
- 5. C7 SYARIAH EVIDENCE: CIRCUMSTANCIAL EVIDENCES ( AL - QARINAH ) . Definition . Authority . For H cases . For Qisas cases . Types (5) . E by Expert - Authority - Jurist views . Doc E - Authority - Jurist views - Classes ♦ DEFINITION Literal: together, company, asso, linkage, union, related Technical: refers to things that can be heard seen touched . Prof Anwarullah: logical inference from circu. . S.3 SCEA . S. 5-16 SCEA . S.11 SCEA . Only strong Q accepted as E. Has to reach degree of Zan al Ghalib. . Art 1741: “a complete presumption proof is an inference which attains the degree of positive knowledge” ♦ AUTHORITY .YUSUF 12:18 - shirt-blood-tale passed-wolves-not torn . YUSUF 12:25-27 - . (H) Badr battle: killed Abu jahal - showed swords - blood stained - killed him . (H) Umar: hadd of arak by smell breath may be imposed ♦ QISAS Murder can be proven by Q. . Imam Malik, Hambali: Q can be used. . Ibn Qayyim: “if a person-found-murdered-another stood by dead body with blood stained knife-no doubt same person had killed him . Jurists concur that taazir can be given in murder/hurt case on Q. ♦ QARINAH IN HUDUD CASES Z-I-N-A Jurists ruled out it can only be established by iqrar and shahadah (4W). No application for Q. Issue: What if est. thru pregnant unmarried woman? . Abu Hanifah, Shafie: X H. / H only when pregnancy served to strengthen any admission or shahadah. . Hambali: X H because she may be raped and there is uncertainty on whether she will pregnant or not . Imam Malik: / H if she’s not resident in the juris. Other Q such as semen, medical report shall be sufficient proof for taazir only. In rape case, Q such as marks for taazir only. T-H-E-F-T(SARIQAH) Issue: Whether the discovery of stolen items in the pos. of someone who denies that he stole such items can be accepted. . Maliki: / H if he fails to prove that he obtained the goods lawfully. If he prove it, X H because there arise shubhah. Two presumptions: I. He is in pos. (bona fide purchaser) II. He himself is a thief, even with evid. . Hambali: / H even without confession . Ibn Qayyim: If caught red handed, existence of prop. Reached level of iqrar and shahadah. . Hanafi/Syafie: X H because shubhah. M-I-N-U-M-A-R-A-K Issue:Whether Qsuch assmell from mouth or vomit could be used as evid. 1. Hanafi, Shafie, Hambali: mere smell cannot be basis of conviction 2. Imam Malik, Ahmad & Zahiri: / H because the smell from breath is strong Q Conclusion: Jurists concur that taazir shall be given in this case based on Q/circu. evid. OR on the evid. Less than the evid. Required for the proof of H. ♦ TYPES OF QARINAH (5) 1. Post-mortem 2. Physical peculiarities 3. Blood-stained weapon 4. Dying statement (guilt of accused) 5. Motive (ascertain enmity)
- 6. ♦ EVIDENCE BY EXPERT Literal: testi. Of a person skilled in a certain field. Technical: Testi given in scientific, technical, by experts Used to assist ct. W may receive assist from expert. Ct will decide. ❖ AUTHORITIES . Al Nahl 16:43 - . (H) Aisyah: Prophet returned home - in moody - examined feet of Zaid and Usamah - related . Art 1689: Skilled person acceptable as authentic testi. Even if they don’t use the word shahadah. . S. 33-34 SCEA ❖ Jurists views . Ibn Qayyim: an expert opinion of doctor may be decided in wounds . Hambali: if woman - zina by 4 MW but there is W on expert she’s a virgin - qazaf shall not be inflicted on the W Ct. may refer to expert for opinions on case. Non-M can give expert opinion if qualified. ♦ DOCUMENTARY EVIDENCE Evid. Derived from doc. Produced for inspection of ct. “Doc” can be any matter expressed, described upon any substances by means of letters, figures or marks for purpose of recording the matter. ❖ AUTHORITIES . Al-Baqarah 2:282 - . Al-Nur 24:33 - . Imam Al Bukhari : doc can be used as proof in ct. Prophet had used sealedand stampeddocs to Roman gov in relating to H cases . Art 69: “correspondence by writing is like talking to one another” . Art 1606: “an admission in writing is like an admission by word of mouth” . Art 1607: “a persons giving another an order to write a confession for him is in effect an admission. . Art 1608: “the entries of a merchant, in his books which are in order, are also a kind of admission by writing” . S. 3 SCEA . S. 48-71 SCEA ❖ JURISTS VIEWS 1. Cannot be used as ie in prop docs, it may be forged or copied. 2. Acceptable to safeguard interests of society, provided its free from forgery 3. Ibn Qayyim: verification of docs is vital. Thus, applying s. 56 of SCEA ❖ CLASSES 1. Testi for doc of person making admission. W for authenticity needed. For taazir and prop cases. Valid if he wrote affirmation wholly/partly. 2MW needed to testi. Authenticity. 2. Testi. For doc of a dead/missing person. Permissible & admissible such a MW or FW. 3. Testi of W for his own doc. Maker may give e according to his own knowledge. May assist judge. W allowed to do so. If he cannot be ascertained and remember content of doc, he is not permitted to give evid. In such a case.
- 7. C9 SYARIAH EVIDENCE: CRIMINAL PROCEDURE IN SYARIAH COURTS . Intro . Rights of accused person . Procedure - Pre Trial - Trial - Sentencing - Appeal ♦ INTRO . An Nisa : 58 - duty to do justice . S. 230 SCP - if its unclear, refer hokum syarak Actonly coversMuslim and within state boundaries. Jurisdiction depends on types of offence, and where offence took place. ♦ PROCEDURE Pre Trial - Info - Investigation - Search - Arrest - Power to seize Trial Sentencing Appeal ✦ RIGHTS OF ACCUSED PERSON . Principles . Right to know ground of arrest . Right to be produced before judge in 24hr . Right to consult counsel . Right to be released of bail . Right during trial . Right after judgment - Principles * Presumption of innocence, guilty until proven so. vi. Freedom from L is a fundamental principle vii. Evid. Is for the person who claims, the O for the person who denies. ♦RIGHTS 1. R TO KNOW GROUND OF ARREST . S. 14(1) . S. 35 . AL MULK 67:15 ____________________ 2. R TO BE PRODUCED BEFORE JUDGE IN 24HR . Art 5(4) FC . S. 22 . S. 36 ____________________ 3. R TO CONSULT COUNSEL . AL QASAS 28:34-35 . (H) I give judgment on their behalf according to what I hear from them ____________________ 4. R TO BE RELEASED ON BAIL Bail is allowed, including for hudud. Bail. SS. 185-191, 223. 19-33 Bond. SS 13- 198-200 . Al Ghamidiyah: pregnant adultery - delivered baby ____________________ 5. R DURING TRIAL . S. 72 . S. 96 . S. 104, 106, . S. 111. 115 . AL MAIDAH 5:8 . (H) no proceeding against an absence ____________________ 6. R AFTER JUDGMENT . S. 99 . S. 128-133 . S. 224
- 8. ✦ PRE TRIAL ➡ INFO; can be given in 2 ways - to REO - S. 54 SCP - complaint to judge - S. 74 SCP . S. 54(2) AIL : REO to assist investi. Powers REO:to investigate, question, search, arrest, seize Public has duty to give info about crime. . (H) if peeped - poke eyes - u not to be blamed PROCEDURE INFO . S. 2 SCP . S.9 SCP . S. 54(2) SCP . S. 55 - 57 . S. 211 SCP ➡ INVESTIGATION: all proceedings for collection of evid. Conducted by PO or other authorised person - Power REO in investi. Include : viii. Power to question W ix. Power to arrest x. Power to search premise/body xi. Power to seize/confiscate POWER TO QUESTION A W . S. 2 . S. 58 - 61 . S. 215 ________ POWER TO ARREST PO/judge/REO/other . S. 10 . S. 14 . S. 18 - 22 . S. 32-41 DETENTION . S. 22(5) . S. 107 ________ POWER TO SEARCH . S. 11-12 . S. 14(2) . S. 15(1) . S. 17 . S. 42-53 . Al Nur 27-29 ________ POWER TO SEIZE . S. 15-16 . S. 52 DIARY . S. 65(1) - 66 ✦ TRIAL . s. 58 of AIL : Chief Syariah Prosecutor exercisable at his discretion, to institute conduct and discont. . S. 73 SCP . S. 103 SCP . S. 181 - 184 SCP PROCEDURE . S. 96 SCP Pleading guilty Will be recorded to ascertain understanding. Judge det. If plea reflect nature offence. Judge conform if accused want to proceed. If no, plea rejected, go to trial. If unqualified plea, guilty. Pleading not guilty Accused can cross-examine all W. . S. 73 SCP . S. 96 SCP . S. 111 SCP ✦ SENTENCING Final order of disposing case. Accused normally allowed to plead in miti. Before sentence is passed. ✦ POST-TRIAL
- 9. C10 SYARIAH EVIDENCE: CIVIL PROCEDURES . Introduction . Pre-Trial - Parties - Juris - Mode of commencement . Trial - Pleadings - Hearing - Evidence - Judgment . Settlement outside court ♦ INTRODUCTION - S. 245 SCP ♦ SETTLEMENT OUTSIDE OF COURT . S. 94 - agmt by both parties, consent . S. 95 - Withdrawal of case by P . S. 99 SCCP - hold sulh to settle dispute ♦ SULH . AN NISA 4:35, 114, 128 . AL HUJURAT 49:9 . (H) reconciliation is allowed among the muslims, except for recon. That makes the lawful unlawful or unlawful lawful. . (H) Umar: Settle the dispute between them, until they reconcile PROCEDURE . S. 247 SCCP . R1 - inapplicable for divorce under ifla . R3 - summons issued, notice sulh will be issued . R4 - non appearance is contempt . R5 - parties appear in person, not by lawyer . R7 - if failed, chairman report to court . R8 - after report, fix date hearing PRACTICE DIRECTION NO 3 2002, SYARIAH JUDICIARY DEPARTMENT • When the case is registered, it must be referred within 21 days to the Chairman of Majlis sulh, whereby sulh notice will be served to the parties involved to attend the sulh session, and any agreement from the session should be recorded and read again before the parties and forward it to the judge for record.
- 10. ♦ PRE - TRIAL • PARTIES All Muslim can sue/be sued in SC. . S. 3 . S. 24-30 • JURISDICTION . S. 40 . S. 52 • MODES 2. Summons . S. 7 - S. 12 2. SOC . S. 63 3. APP . S. 7(2) . S. 13-15 4. AFFIDAVIT . S. 112-118 5. DOCS Mode of service : . S. 54 ♦ TRIAL . S. 63-71 . S. 119 - place . S. 120 - appearance . S. 121 - absence GR: all parties must present. (e) : hearing in absence is allowed. . Hindun bt Utbah : . Tuminah . Siti Zainab . Kalthom . Rokiah Not all cases can be heard w absence. Conds must be fulfilled : i. Summon proved to duly served ii. D cannot avoid int. iii. P bring evid/W to prove claim iv. P take Y istizhar to strengthen e . S. 102 - subpoena to W . S. 124 - notice of proceedings . S. 125 - tendering e . S. 126 - order of speeches JUDGMENT . S. 130 . S. 131