ISLAMIC LAW OF EVIDENCE
MODERN SCIENTIFIC TECHNIQUES: THEIR EVIDENTARY VALUE AND ISLAMIC LAW OF EVIDENCE
MUHAMMAD NAWAZ DOGAR
Assistant Professor, University Law College
University of the Punjab, Lahore
Justice is one of the most important factors for peace and prosperity of the community and it is the witness who plays a vital role for complete construction of Justice. Under the Islamic Law, evidence is a trust imposed by Almighty Allah for human being. The Holy Quran contain many verses which emphasize such obligations to fulfill in this regard, some of these are reported as under……….
“Who is more unjust than those Who conceal the testimony they have from Allah? But Allah is not unmindful Of what ye do1”
“The witnesses should not refuse when they are called on (for evidence)2”
“Conceal not evidence; For whoever conceals it – His heart is tainted With sin. And Allah Knoweth all that ye do3”.
Further it has been stressed that at the time of providing evidence the witness shall observe equality and complete impartiality and shall avoid making misrepresentation which may be prejudicial for other. The Quran says……..
“O ye who believe! Stand out firmly For Allah, as witnesses To fair dealing, and let not The hatred of others to you make you swerve To wrong and depart from Justice. Be just: that is Next to Piety: and fear Allah. For Allah is well-acquainted With all that ye do4”.
The above verses lay down some basic condition for evidence under the Islamic Law.
1. It is a trust imposed by Al Mighty Allah for human being which shall be fulfilled when required.
2. Concealment of evidence is a sin.
3. For providing evidence a witness shall state all the relevant facts with honesty and impartiality even the same may be against the interests of his own or his near relatives.
4. It shall be without any fear and greed.
5. All facts shall be narrated clearly so that the presiding officer of the court may reach the right decision without any difficulty. While explaining the quality of believers Quran says…….
“Those who witness no false hood5”
6. The witness shall not avoid Justice during evidence being biased against anyone.
Summoning of second witness
Under the Islamic Law if there is found some suspicious regarding correctness and truth about the witnesses, court may summon other witness. The Quran says…….
“But if it gets known That these two were guilty of the sin (of perjury), Let two others stand forth In their places – nearest In kin from among those Who claim a lawful right: Let them swear by Allah; “We affirm that our witness Is truer than that of those two, and that we Have not trespassed (beyond The truth): if we did, Behold! The wrong be Upon us That is most suitable: That they may give the evidence In its true nature and shape, or else they would fear That other oaths would be Taken after their oaths. But fear Allah, and listen (To His counsel): for Allah Guideth not a rebellious people6”.
This opportunity of providing evidence over evidence is due to the fact that there may be chances that a witness may not give correct and true evidence which may be disproved and rejected by evidences of other witnesses and the person providing false witness will be declared culprit and may get disrespect and insult in the community.
Number of Witnesses
It has been laid down that for fiscal matters there shall be two male witnesses or one male and two female witnesses. This principle has been clearly expressed in the Quran. Similarly any document related with debt or will the same rule is applicable under the Islamic Law of evidence. However, for general immoral propaganda (Jurm-e-Fahash) there shall be four witnesses7 and if the same is as allegation against modest women such person should provide four witnesses and in case of failure to do so they shall be punished with 80 lashes8 and their evidence shall not be acceptable and they shall be deprived of such rights which otherwise are available for noble citizens under the Islamic state9. Matters related with Talaq at final stage, two witnesses are required10.
General Principle of Evidence
It is general principle of evidence that writing or stamp is not acted upon; however, if the same is clear from any type of forgery then it becomes permissible. Therefore, official documents and Shahi Farameen remain always acceptable and can be acted upon on the ground that these always are far from fraud and forgery11.
It is also required for Qazi to record the statement of witnesses either himself or his official before him because special precautions are required for recording the witness and it shall be before the person or his attorney against whom it is being recorded so that the opponent party may cross examine on it. It is also required for Qazi to read the statements when these are recorded by his officials for its authenticity12.
It is that evidence which can not be rejected but is deduced on facts and circumstances when it is not possible to prove against it. For example, a person comes out of a house with knife in his hand stained with blood looking confused and in the meanwhile a person is found dead with a cut on throat, there would be not suspicion that the same person who came out of that house is culprit and possibilities like suicide by the deceased shall not be given due consultaion13.
Scientific Techniques as Circumstantial Evidence
Today there are certain scientific techniques used for evidence to prove the facts. These are
A. Post Mortem
It is examination of dead body by medical officer with following objects.
a. To establish identity of an unknown body.
b. To ascertain cause of death and time since death
c. In case of a newly-born infant the question of live birth and viability, i.e. capability of living.
The following rules14 are applicable for post mortem:-
1. Post mortem examination should only be undertaken when there is a written order by District Magistrate (but it is not necessary condition under Islam Law where only permission by city Qazi is sufficient).
2. It should always be done in day-light and not in artificial light when contusions and their colour or pin-point marks maybe missed.
3. It should be thorough and complete. All the three cavities of the body, i.e. skull, thorax and abdomen should be opened and examined even if the cause of death has been found in one of them, because you have to state not only the injuries to certain organs, but also to certify that other organs are healthy.
4. All the details have to be entered in the post mortem register, immediately at the time of examination. Preliminary rough notes may be taken.
5. Nothing is to be erased or overwritten, if any cutting is made, it should be initialed/signed.
6. Do not allow police or any other outsider to be present at the time of post mortem examination (only your staff is allowed).
7. When the police bring the papers to you, see that the following documents are present.
i. Statement of injuries by the police
ii. Death report on the prescribed form
iii. Statement of witnesses
iv. If examined during life, by a doctor, then copy of the medico-legal report, operation notes, hospital notes, etc.
8. All article found on body should be noted on the register with full detail and these should be returned back to police by taking the signature of the person receiving on post mortem register as a receipt.
9. Any bullet or shorts recovered from body should be handed over to police in a sealed parcel under signature.
10. Examination should be done as soon as possible and report shall be sent immediately otherwise, delay may waste the proof and create trouble and inconvenience to relatives of the deceased.
If the above rules are observed post mortem report may prove sufficient to determine the cause of death and to impose criminal liability accordingly.
B. Record of Voice
Importance of tape recorder becomes relevant if the voice of culprit has been recorded at the time of occurrence of incident and same is verified by its expert then such opinion becomes relevant15.
C. Hand Writing and Finger Prints
The opinion of handwriting / finger print experts become relevant16 when the Court considers them as fully adept in their respective fields. For example
i. If the matter in issue is to decide that whether a certain document is written by ‘A’ or not, the opinion of a handwriting expert is relevant.
ii. The opinion of finger print expert is also relevant when the matter in issue is to match the finger impression of the accused with that on the knife, used in murder.
It is important to note that the finger prints of one is never identical with other, therefore, it is required to search the place of occurrence of crime with full care and vigilance to get any article found to get the finger prints for verification of the experts and if verified this circumstantial evidence becomes a valid proof against him.
D. Blood Examination
Blood examination may become affective for murder cases therefore, following may be deducted from blood examination.
a. Whether it was a venous or arterial blood
b. Whether murdered was died before hemorrhage
c. Whether hemorrhage was not due to other type of injury
d. Whether the blood was menses blood or piles blood
e. Whether it was not the blood of an animal
Keeping in view the above, if the clothes of culprit and murdered bear blood of same body and the culprit is arrested at the place of occurrence of crime, status of blood examination would be in the nature of such circumstantial evidence.
E. Dying Declaration
It is the statement made by a person as to cause of his death or as to any of the circumstances of transactions which resulted in his death17. Before dying declaration can be admitted in evidence it must be proved that.
a. It was a statement of a person who must be dead
b. It must, as far as possible, in actual word of the maker
c. It must corroborate with other material evidence on record
d. Cause of death must be fact in issue
e. It must be taken as a whole therefore, such a dying declaration, which is incomplete upon its face18, is inadmissible in evidence because no one can tell what the deceased might have added
f. It must have been recorded immediately after the occurrence of crime without any opportunity to have consultation
g. There was sufficient light at the place of occurrence and the deceased had been observed the incident with due diligence and had recognized the assailant.
It is general presumption that dying person usually speaks truth. Admissibility of dying declaration obviously rests upon the principle of necessity alone. As the victim is, in most cases, the only principle eye witness to the crime, the exclusion of his statement might defeat the ends of Justice. Therefore, dying declaration duly proved and admitted into evidence, can safely be basis for conviction in a case and where it is, true and genuine, is sufficient for conviction19.
From above discussion it can be concluded that the discussed circumstantials which are applicable in the modern era are in line with Islamic Law of evidence to great extent therefore, these can be made a part of Islamic Law of evidence to that extent.
1. Surah Al-Baqra Ayat 140
2. Ibid Ayat 282
3. Ibid Ayat 283
4. Surah Al-Mayda Ayat 8
5. Surah Al-Furqan Ayat 72
6. Surah Al-Mayda Ayat 107 and 108
7. Surah Al-Nisa Ayat 15
8. Surah Al-Noor Ayat 4
9. Ibid Ayat 23
10. Surah Talaq Ayat 2
11. Al-Mujallatul-Al-Ahkamul Adlya 1981 Page 406 published Ulma Academy publication Department of Awqaf Punjab, Lahore
13. Ibid Page 407
14. Forensic Medicine and Toxicology by Dr Siddique Hussain Page 43
15. Article 60 Qanun-e-Shahadat Order 1984
16. Article 59 Ibid
17. Article 46(1) Qanun-e-Shahadat Order 1984
18. Muhammad Abdullah Vs Safdar Khan, 1973 SCMR 26
19. Muhammad Iqbal Vs State, 1978 PCr. LJ 507(DB)