SHAHADAH

(TESTIMONY BY EYE-WITNESS)

Topic 6
 OUTLINE

• Definition nisab al-shahadah

• Authorities shahadah ala- shahadah
• Elements shahadah al- hisbah
• Conditions shahadah al- zur
• Retraction shahadah bi al-tasamu’
• Tazkiyyah al-shuhud
 INTRODUCTION
• It is unanimously agreed by the jurists that shahadah
is an acceptable means of proof.

• It is regarded as the 2nd best way of giving evidence

after al-iqrar.
 DEFINITION

• Literal Meaning
- “Shahadah” comes from the root word “shahada”
- which means information or news which are decisive
- also refers to as:
a. “mushahada” (‫ )ﻣﺷﺎھدة‬- evidence from witnesses
b. “muayanah” (‫ )ﻣﻌﺎﯾﻧﺔ‬- definiteness
c. “hudhur” ( ‫ – ) ﺣﺿور‬attendance/witness
d. “ilm” ( ‫ – ) ﻋﻠم‬evidence obtained from the words of
the person giving information.
# Technical Meaning

• Shahadah is information which has the quality of

truth which is used to show the existence of right/
interest for the purpose of judicial hearing using the
expression that he bears witness.

• Shahadah is information given relating for the right

/ interest of anor person with the use of expression
"‫( "اﺷﮭد‬I bear witness)
Provisions
• Sec 3 SCE(FT)
• Art 1684 Mejelle

BASIS FOR THE ADMISSIBILITY OF SHAHADAH

Al-Quran
An- Nisa’ : 135
Al-Baqarah : 282
Al-Talaq : 2
Hadith
• Narrated by Ibn Abbas:
He was asked about giving testimony, then he said: “Do
you see the sun?” The man replied: “Yes”. Ibn Abbas said:
“If you see something like you see the sun, then be a
witness, if don’t, leave it (i.e don’t be a witness)”

• Narrated by Zaid b. Khalid Al_Juhani :

“Did I tell you all about good witness? He is the one
who give his testimony before being asked to do
so.”

Ijma’- accepted by all Muslim scholars.

 ELEMENTS OF SHAHADAH

1. A person who gives shahadah

2. ‫ – ﻣﺷﮭود ﻟﮫ‬the party who benefits from the shahadah
3. ‫ – ﻣﺷﮭود ﻋﻠﯾﮫ‬person against whom the testimony is
given
4. ‫ ﻣﺷﮭود ﺑﮫ‬- subject matter
5. ‫ – ﺻﯾﻐﮫ‬words or expression of shahadah
 CONDITIONS FOR ADMISSIBILITY OF SHAHADAH

1. Shahid must fulfils certain requirement at the time of

occurrence (‫ & )ﺷروط اﻟﺗﺣﻣل‬at the time of presenting (‫)ﺷروط اﻻداء‬
2. Claim/cause of action & a request from the plaintiff for the
shahid to give evidence.
3. Request from the prosecutor / plaintiff for the witness give
testimony. Permission by the Qadi.
4. Witness must give testimony on matters which is clearly under
his own knowledge, not to give based on his conclusion.
5. No contradiction between the testimonies given.
6. Sighah – expression of ‫ اﺷﮭد‬must be used while giving the
testimony.
7. Give testimony with regards to the matters outlined in the
charge.
 CONDITIONS OF SIGHAH
2 main conditions:
1) Clear words must be used
• Majority: must use expression of ‫اﺷﮭﺪ‬
• Ibn Hazm :other expressions are also acceptable

2) The statement of shahadah must be in conformity

with the charge /claim
 CONDITIONS OF THE SHAHID AT THE TIME OF
RECEIVING THE EVIDENCE
(‫)ﺷروط اﻟﺗﺣﻣل‬

• Sound mind/mumayyiz
• Ability to see / not blind
• Baligh, free, Islam, male (?)
CONDITIONS ON THE SHAHID AT THE TIME OF GIVING
THE TESTIMONY
((‫ﺷروط اﻻداء‬

• Muslim
• Sound Mind ( (‫ﻋﺎﻗل‬
• Reaching The Age of Puberty (‫)ﺑﺎﻟﻎ‬
• Trustworthy (‫)ﻋﺎدل‬
• Good Memory
• Not Bias (free from tohmah)
• Noble Character
• Free ( (‫ﺣرﯾﮫ‬
• Ability to Speak
• Ability to See
 NUMBER OF WITNESSES
( ‫)ﻧﺼﺎب اﻟﺸﺎھﺪ‬

1) Shahadah of 4 Men
a. Zina case
- 4 male witnesses

• An-Nisa’ : 15
• Nur: 4
• An-Nur:13
• Hadith
“It is your responsibility of producing 4 witnesses in
supporting the truth of your statement. Otherwise the
flog is on your back”.

• Sec 40 of Kelantan Syariah Criminal Code

- the number of witnesses required in zina shall not be
less than four

b. Sodomy/liwat/homosexual
i. Imam Abu Hanifah
-sufficient with 2 witnesses
ii. Syafei, Hanbali
-4 witnesses are required
• Hadith:
“If a man commits illicit relation with the another
man, both are adulterers”.

Witnesses : Male or female?

• Zahiri
- male witnesses can be replaced by women
witnesses (1 male equivalent to 2 female)

• Jumhur
- in zina, the shahid must be male
• 2) Shahadah of 3 male witnesses

• Imam Ahmad Ibn Hanbal

- shahadah of 3 men is accepted in allegation of a
person known be rich that he had become pauper

• Sec 86(1) SCE (FT)

• 3) Shahadah of 2 male witnesses

• Imam Malik, Shafei, Al-Auzaei

- In all hudud and qisas cases other than zina

• Hanbali
- also applicable in cases of marriage, ruju’, divorce,
free a slave, agency, will or the similar matters.
·Al-Maidah : 106 ‫واﺷﮭدوا ذوا ﻋدل ﻣﻧﻛم‬
· Al-Talaq: 2
• Zahiri
- in the above cases shahadah of 1 male can be
substituted by 2 females
- rely on the principle of ‫ ﻣﻌﺎﻣﻼت‬cases where one male
can be replaced by 2 female witnesses.

• S.40(1) of Kelantan Syariah Criminal Code

“the no. of witnesses required to prove all offences
under this Enactment except zina shall be at least
two”
Cases: -Norazaha bin Ariffin v Rohana binti Othman
-Pendakwa Syarie Kelantan v Yusundy b.
Josan & ors
4) Shahadah of 2 male OR 1 male + 2 female

• Majority of Muslim Jurists

- agreed that this type of shahadah is applicable in
cases involving property & property related crimes

Hanafis
-accepted in all civil matters
Al-Baqarah: 282
• Art 1685 of the Mejelle
• Case: Muhammad Rafiq & ors (App) v The State (Resp)
5) Shahadah of 1 male witness

• Ibn Qayim, Shurayh & Zarrah Abu Awfa

- accepted shahadah of 1 man when the judge knows
the truth of such claim OR when he was satisfied with the
credibility of the witness

• Majority
- shahadah of one man cannot be accepted except in
the sighting of moon indicating the beginning of month
(Ramadhan / Syawal)

• Hanafis
-acceptable in an exceptional cases
S.86(2) & (3) of SCE (FT)
6) Shahadah of 1 man & oath of the Plaintiff

• Majority
- can be accepted in mal cases
- hadith
• Hanafi
-X – against the Quranic injunction & hadith
· Al-Baqarah 2:282
· Hadith
‫اﻟﺑﯾﻧﮫ ﻋﻠﻰ اﻟﻣدﻋﻰ واﻟﯾﻣﯾن ﻋﻠﻰ ﻣن اﻧﻛر‬
• S 88
7) Shahadah of 1 Female Witness

• Majority
Acceptable in matters pertaining to women’s affairs:
Hadith:
“Testimony of women is permissible in matters to which
men have no access”.

• Sec 86(4) SCE (FT)

 RETRACTION OF TESTIMONY
- There are few situations where the retraction of
shahadah can be made:-
1. retraction made before the judgment is passed
acc. to majority of Muslim jurists :
→ ct cannot decide the case relying on the
retracted shahadah
→ however the shahid is not absolutely free
from any liability
→ Art 1728 of Mejelle : the shahid will
be reprimanded
2) Retraction made when the sentence is already
passed:-
i) Before its’ execution
ii) After the execution

1. Before the execution:-

(a) if it is a hudud or qisas punishment
- sentence is x enforceable
- retraction is regarded as ‫ﺷﺑﮭﮫ‬
- no punishment imposed
‫ادروء اﻟﺣدود ﺑﺎﻟﺷﺑﮭﺎت‬
But according to some jurists, in case of zina , by such retraction,the
syahid will be subjected to qazaf punishment.
(b) Mal cases
-the sentence is enforceable
-the right of ‫ ﻣﺷﮭود ﻟﮫ‬has been established
-it is NOT lost due to the retraction
-in mal cases the standard requirement of proof is
not as heavy/serious as in hudud
- The shahid must compensate the ‫( ﻣﺷﮭود ﻋﻠﯾﮫ‬against
whom the testimony is given).

– Said Al-Musayyab/Musayyib and al-Auzaei

- sentence has no effect & cannot be executed
- there is no actual evidence produced in
the case
-sentence cannot stand without evidence
(ii) After execution of the judgment
- judgment stands
- retraction has no effect and ‫ ﻣﺷﮭود ﻟﮫ‬will not liable for
anything regardless whether it involve a case of
mal/hudud/qisas as the judgement has already been
executed.
RESPONSIBILITY OF WITNESS WHO RETRACTS HIS
TESTIMONY
In qisas cases
i) if he admits that he intentionally give a false
evidence so that the accused will be killed & later
retracted his shahadah
♦Hanbali & Shafei
- qisas/ the same punishment is applicable to the
witness
- basis:
Saidina Ali amputated the hand of witnesses
who had given false evidence in the
case of stealing.
♦ Hanafi
- Qisas cannot be imposed, because they are not the
direct cause for the imposition of punishment ( anology
with someone who dig a well and somebody fall into it.)

ii) The witness pleads that the shahadah was mistakenly

given, they will be no qisas, but they must pay diyyah.
Saying of Saydina Ali:
Mal cases

♦ Malikis, Hanbalis & Shafiis

- the witnesses who retracted their testimony is liable
to pay damages because it was their testimony that
had led the property being removed from its rightful
owner.
 EXAMINATION OF WITNESSES
(‫)ﺗزﻛﯾﺔ اﻟﺷﮭود‬

Definition &
•a form of investigation conducted by the court on the
witnesses for the purpose of ascertaining whether he is
adil or not
•Why Tazkiyyah al-Syuhud is important ?
• assisting judge to evaluate the testimony
presented to him
• assisting judge to make decision/ judgement
accordingly
• When the witness gives testimony does it bind the
judge?

– There are 2 views on this issue:

🗹the first view
- the judge, after hearing the witnesses
should give judgement based on the testimony
without hesitation/ evaluation

🗹 the second view

- regards testimony as no more than a
means for investigating & establishing the truth

##the preferred view is the second one

 Purpose of examination

♣ to make sure that the witnesses (syahid) is a

trustworthy person
♣ to determine the authenticity of the testimony
given
♣ to ensure that the evidences procured are true
 Malaysian Provisions

* Sec 119 of SCE(FT)

- where a witness has given his evidence
- judge has reason to believe that he is not adil
- judge shall order him to be examined
 Procedures
• conducted after the witnesses had given their
evidences before the court

• after hearing the evidence given by particular

witness – he will then ask the officer of the court to
record the following:

❖particulars of the witnesses

❖ for whom the testimony is given (‫)ﻣﺷﮭود ﻟﮫ‬
❖ against whom the testimony is given (‫)ﻣﺷﮭود ﻋﻠﯾﮫ‬
 (a) particulars of the witnesses – name, nick
name, race, place of residence, profession,
colour of skin, height, mosque where the
witness suppose to perform his
congregational prayer etc.
(b) for whom the testimony is given (‫)ﻣﺷﮭود ﻟﮫ‬
(c) against whom the testimony is given (‫ﻣﺷﮭود‬
‫)ﻋﻠﯾﮫ‬

## all these particulars are needed for investigation

purposes (eg: their neighbours that can be
contacted to inquire on the personality/
credibility of the witnesses)
 Muzakki

• the muzakki is a person who will determine whether

the witness is adil or not
• he will be appointed by the judge
• possesses specific criteria
• Sec 120 SCE (FT) : (illustrations)
 CRITERIA OF MUZAKKI

– a pious person
– zahid & not influenced by wealth /wordly gain
– possesses an experience relating to human
behaviour
– easily adaptable to the society in which he will
conduct the investigation
– have knowledge in fiqh by which he is able to
know/determine when the witness can be
accepted/rejected.
TYPES OF EXAMINATION
 Secret Examination
(Sec 121 & 122 SCE)

• conducted outside court without the knowledge

of the parties involved in the investigation
• No. of Muzakki
• Abu Hanifah, Abu Yusuf & Malik - only 1
• Shafii, Imam Muhammad - 2 examiners
• Ahmad al-Shaybani - no. of muzakki follows the
no. of witnesses
 Open Examination
(Sec 123 SCE)

• Shall be carried out in an open court

• OTHER RELATED PROVISIONS

• Sec 126 : Denial over a witness
• Sec 127 : When examiners are of different views
• Sec 128 : Dead / Missing witness
• Sec 129 : Witness is required to take the oath
 TESTIMONY UPON TESTIMONY
( ‫)اﻟﺷﮭﺎده ﻋﻠﻰ اﻟﺷﮭﺎدة‬
• DEFINITION
- SAS is an evidence given by a witness stating that
someone else has attested on a material fact/right
which is the cause of present action.

- where a witness heard the testimony of another

person & then relates what he has heard to another
- ∴in SAS there are 2 elements:
(i)the original witness – who actually
saw/heard the material fact.
(ii) Substitute witness
 Legal Basis of SAS

- No authorities in the Holy Quran / hadith

- Based on the principle of istihsan (preference) and hajah
(necessity)

❖ Art 1688 of the Mejelle

-It is necessary that the witness should really know what
he is testifying
- BUT with respect to property matters, or to the fact of a
person being dead, the testimony of a person saying
that he has heard from atrustworthy person – his
testimony is accepted.
 Types of SAS

• Types of SAS:

(a) the substitute witness is requested by the original

witness to give evidence on his behalf.
- this process is normally made outside the ct.

(b) Substitute witness give shahadah based on what

he has heard from the testimony of the original witness
in court
- no element of request from the original witness
 APPLICABILITY OF SAS
Unanimously agreed that SAS is admissible in mal cases

Hudud & qisas = differences of opinions:-

i) Imam Ahmad + Abu Hanifah : NOT admissible.

Reasons:-
i) Hudud & qisas must be established up to the level of yaqin
ii) Encouragement to conceal the a’ib of anor (Ibnu Humam
& Shirazi)
iii) Since SAS is admissible based on istihsan & no clear text
from the Quran & Sunnah then it cannot be made
admissible in Hudud and qisas
2) Imam Malik & Abu Thaur

- SAS is admissible in all cases including hudud & qisas

(i) these cases can be established by the shahadah of
original shahid, ∴it can be establish by substitute
testimony as well
(ii) analogy of SAS with the words of interpreter
which can be accepted
(agreed by all jurists)
3) Shafiis

- Differentiates between the right of man & the right of

‫ﷲ‬
(i) if it relates to the right of man – SAS can be
accepted.
ii) if it relates to the right of Allah, there
are 2 views:-
First view: SAS cannot be used as a ground of proof .
Reason : SAS is admissible in the right of man due to
necessity but there is no necessity as far as the right of
Allah is concerned.

Second view
• SAS can be used as a means of proof except in case
involving a punishment of stoning i.e adultery since
the witness is required to present and participatein
stoning of the accused.
 CONDITIONS OF SAS
(1) Original witness must have a valid reason/excuse for not
giving the shahadah personally.

(2) Both witnesses (original + substitute) must fulfil the

condition of giving testimony (‫ )ﺷروط اﻻداء‬and ‫ ﺗزﻛﯾﮫ‬may be
carried out if the credibility of the witness in unknown.

(3) Substitute witness should specify the name the original

witness.

(4) Original witness cannot deny the request made i.e he

cannot deny that he has requested the 2nd witness to give
shahadah on his behalf.
 NUMBER OF SUBSTITUTE WITNESS

• the no. of substitute witness must be more than the

no. of original witness.

• Minimum requirement of shahadah is that 2 male

witnesses or 1 male + 2 female.

This is to ascertain the quality of the shahadah & to

avoid ambiguity that may arise.
 SHAHADAH BI AL-TASAMU’
‫اﻟﺷﮭﺎدة ﺑﺎﻟﺗﺳﺎﻣﻊ‬
• SBT means giving evidence/shahadah infront of a
judge based on the fact with is widely spread & well
known, w/out seeing or listening the facts by his
own.

• it is an exception to the rule that the witness must

see/hear the fact by his own.

• SBT is a kind of evidence with reached the status of

shahadah & not a khabar or statement because the
expression of ‫ اﺷﮭد‬must be used.
 CONDITIONS

• the news must be well known

• widespread among the community
• received by way of mutawatir

BASIS OF THE ADMISSIBILITY

- Based on istihsan and necessity.
 MATTERS CAN BE ESTABLISHED BY SBT
♣ Imam Malik & Imam Shafii
SBT is admissible in certain limited matters
• appointment of qadi
• Will (‫)وﺻﯾﺔ‬
• appoint of wali & wakil
• Paternity
• nasab (paternity)
• death
• suckling (‫)رﺿﺎﻋﮫ‬
• waqf (charitable)
• Transaction (‫)ﻣﻌﺎﻣﻼت‬
• Marriage
• Gift (‫ & )ھدﯾﮫ‬ownership
 FALSE TESTIMONY (SHAHADAH AL-ZUR)

• Give false testimony is a major sin.

• Authority : Al-Haj : 30
• ‫ﻓﺎﺣﺗﻧﺑوا اﻟﻰ ﻣن اﻻوﺷﺎن واﺟﺗﻧﺑوا ﻗول اﻟزور‬
Avoid the abomination of idols and avoid the word
that is false.

Hadith
• Narrated by Abi Bakrah, the Prophet said.
Do you want me to tell you the major sins. (the
Prophet repeated his question 3 X). The comp. then
replied – Yes! The Prophet … said ‫ ﺷرك ﷲ‬, disobey the
parents, and false testimony.
PUNISHMENT

• Majority
- he is subject to ta’zir punishment, if he did it
intentionally
- mode of ta’zir punishment - left to the
discretion of judge

• Hanafi
- he is punished by advertising him in public
- OR the judge may decide to flog him – 10 lashes
Shafie – minimum of 39 lashes
• Selangor Syariah Criminal Code Enactment, 1991-
S.206
- fine not exceeding RM2000/
- imprisonment not exceeding 1 year/
both

• Syariah Criminal Offences (FT) Act 1996, - s. 30(1) -

fine not exceeding RM3000/ not exceeding 2 year
imprisonment/both
 SHAHADAH AL-HISBAH

• When a person giving shahadah comes forward

giving the testimony on matters in which there is no
claim that has been made yet, without being asked
to do so
- He gives the evidence for the sake of Allah.
- In shahadah al-hisbah the one who gives the
shahadah may become the witness as well as the
claimant
 Cases where SH is admissible

•cases relating to the right of ‫ ﷲ‬i.e drinking liquor,

theft, robbery
• zakat
•free a slave,
•will/waqf
• marriage
•other cases involving the interest of the society in
general
 Cases

• Fathillah v Muhammad Ghafar

• Siti Zainab v Muhammad Ishak
• Rokiah v Maidin
• Rosnah v Shafie
• Sharifah Sepoyah V Wan Alwi
 SHAHADAH
in
PAKISTAN & BRUNEI
Qanun-e-Shahadah Order 1984 (Pakistan

• Definition
• Conditions
- Chapter 2 / art 3.
The court shall determine the competence of a
witness in accordance with the qualifications
prescribed by the injuctions of Islam as laid down in
the Holy Quran and Sunnah for a witness……
 Examination of witnesses
• Ghulam Ali v The State
• Examination of witnesses is a condition precedent to
the sentence of hudud and there should be more
than one muzakki.

• Other than hudud – no examination of witnesses

• Chanderbhan and 2 others v The State
Since hudud punishment is not inflicted
examination of witness is not applicable.
 Number of witnesses

• Art 17: Competent and Number of witnesses

 Syariah Court Evidence Order 2011
(Brunei)
• Def : section 3
• Ss 103-107
• S 103 : Who can give Bayyinah or Syahadah
• S 104: Dumb, deaf or blind witness
• S 105: Bayyinah or syahadah of husband, wife , parent
and child
• S 106: Number of Syahid
• S.107:Syahadah of a syahid with yamin
• Syahadah ala syahadah : s 114 –s117
 Examination of witnesses
(Tazkiyah as syuhud)
Chapter 1V
Ensuring the truth of syahadah syahid
S.148:Ensuring the truth of syahadah syahid
S.149: Nature of tazkiyah al syuhud
S.150:Muzakki
S.151:Open tazkiyah
S 152:Open tazkiyah forms part of syahadah
S.153: Secret tazkiyah
S 154: Number of secret tazkiyah muzakki
S. 155:When syahid need not be examined
• S 156: Accusing syahid not a’dil
• S157:When findings of muzakki differ
• S 158:Continuation of tazkiyah
• S 160: When syahid is required to take yamin
 SYAHADAH A’LA SYAHADAH

SS 114-117
•S 114: Syahid asal unable to appear in Court
•S 115: Manner of serving syahadah syahid
•S 116:When syahadah ala syahadah is admissible
•S 117: Conditions of syahadah ala syahadah