IQRAR /

CONFESSION

TOPIC 5
 OUTLINE
• Def
• Authorities
• Types
• Elements
• Conditions
• Effect
• Retraction
• cases
 DEFINITION

Literal meaning
Comes from the root word ‫ ﻗر‬- means to become
stable / ‫اﻻﺛﺑﺎت‬

Syariah terminology
i) To state the confirmation/notification of a right of
another against oneself.
ii) Mejelle art. 1572 :
“Iqrar is for someone to admit the right of another
against himself”

iii) S. 17 (1)
Juristic views

• Shafi’i
i) A testimony of the existence of a proved right against the
maker of the admission himself.
ii) May also be defined as recognition

• Hanafi
i) An admission of the existence of the right of another person
against the maker of the admission himself.
ii) Testimony of the existence of a right or interest for the
benefit of another person and detrimental to the right /interest
of the maker of the admission himself through the use of
specific wordings. It can be made orally, documentary /by
gestures.
s. 44(1) of the Kelantan Syariah Criminal Code
Enactment 1993 : “the best evidence to convict the
accused and make him liable to hudud punishment is
his own confession”
(3) “the confession shall be admissible only against
the accused who makes it, and not to be used against
any other person; and to be a valid , the confession
must not be retracted confession”

Different between admission , confession& iqrar in

Islamic law and Civil Law ???
LEGAL BASIS OF IQRAR
‫‪• Al Nisa : 135‬‬
‫ﺷﮭَدَ آ َء ِ ﱠ ِ َوﻟ َْو ﻋَ ﻠ ٰ َٓﻰ ۞‬
‫َٰ ٓﯾﺄ َ ﱡﯾﮭَﺎ ٱﻟﱠذِﯾنَ ءَا َﻣﻧُوا۟ ﻛُوﻧُوا۟ ﻗَوﱠٰ ﻣِﯾنَ ﺑِﭑ ْﻟﻘِﺳْ طِ ُ‬
‫ۚ أَﻧﻔُﺳِ ُﻛ ْم أَوِ ٱﻟ َْٰوﻟِدَ ْﯾ ِن َو ْٱﻷَﻗْرَ ﺑِﯾنَ‬

‫‪• Al-Baqarah: 282‬‬

‫َٰ ٓﯾﺄ َ ﱡﯾﮭَﺎ ٱﻟﱠذِﯾنَ ءَا َﻣﻧ ُٓوا۟ إِذَ ا ﺗَدَ اﯾَﻧﺗُم ﺑِدَ ْﯾ ٍن إِﻟ ٰ َٓﻰ أَﺟَ لٍ ﻣﱡﺳَ ّﻣًﻰ ﻓَﭑﻛْ ُﺗﺑُوهُ •‬
Hadiths:
1) Reported by Abu Hurayrah - Case of
Maiz bin Malik
2) Reported by Abu Hurayrah –Unais
3) Reported by Sulayman ibn. Buraidah
4) Reported by Said al-Saidi
5) “ Tell the truth even though it is bitter
(against your interest)
Ijma’
It is a unanimous agreement of all the Muslim
jurists that iqrar is an accepted means of proof and
its legality is accepted without any dispute.

Qiyas
Wahbah Zuhayli : if the legality of shahadah is
accepted by the Muslim jurist without any dispute,
by way of anology, to accept iqrar is much more
preferable – reason : no person will put himself into
difficulty unless it is true.
5) Practice of the companions
The companions did pass a judgement based
on iqrar.
e.g : Reported in al Muwatta’ that Safiah bt. Abi
Ubaid narrated that unmarried man who had
committed zina with a female servant came to
Say. Abu Bakar and made confession and
punishment imposed based on his confession.
 TYPES OF IQRAR

S. 17 (1) :
i) Oral
ii) written
iii) sign or gestures

1) Oral
For those who can speak
The best and the most convincing than sign
/gestures
Al Nisa : 135
2) Written / documentary
• Its validity can be found in:-
i) Art. 69 of the Mejelle
‫اﻟﻛﺗﺎب ﻛﺎﻟﺧطﺎب‬
ii) Al Baqarah : 282.
iii) Hadith of the Prophet ; Let the Muslim who has the
provisions to live for two nights to write down a deed
of will.
• Can be made either through official letter / unofficial
letter (ordinary).
• If made by an official letter – there is presumption of
authenticity .
• unofficial - subject to verification.
• To be admissible, it must free from any ambiguity
Ahmad Fathi Bahansi : “if an iqrar relating to hudud or
qisas have been made through a written document,
but during the trial, a contrary statement has been
made by the confessor, the written document is to be
rejected because it amount to some sort of
retraction”.

• Jurist divided this kind of iqrar into 2 :-

1) Civil Matter – Art. 1606 – 1612 of Mejelle.
2) Criminal matters- Not much discussion on this.
Imam Sarakhsi was of the view that it is NOT
admissable in hudud and qisas case.
3) Sign / gestures
• For those who are unable to speak i.e dumb / mute
person, provided it is understood.
• Art. 1586 of Mejelle:

Hanafi:
- Only admissible in civil cases and the maker cannot
write. Hudud and qisas – not acceptable
- Reason – doubts.
• Shafi’i and some of Malikis
- Admissisible in all cases including hudud and hadd
punishment can be imposed - Art. 70 of the Mejelle :
‫اﻻﺷﺎرة اﻟﻣﻌﮭودة ﻟﻼﺣرس ﻛﺎﻟﺑﯾن ﺑﺎﻟﻠﺳﺎن‬
“The well known sign of a dumb person is like an
expression by speech”
 ELEMENTS OF IQRAR

1) ‫ اﻟﻣﻘر‬- Confessor
2) ‫ ﻣﻘرﻟﮫ‬- the person for whom the iqrar is made
3) ‫ – ﻣﻘرﺑﮫ‬Subject matter / fact admitted
4) ‫ – اﻟﺻﻐﺔ‬Lafz
 CONDITIONS OF IQRAR

1) Confessor / ‫اﻟﻣﻘر‬
1) Sound mind - s. 18
- Hadith:
- Effects of iqrar made by the muqir who loses
his mind due to certain causes.
- Iqrar made by the muqir under the influence
of intoxicants.
- Juristic views.
i) Abu Hanifah
ii) Shafie:
- Extent of intoxicants.
 Case : Mst. Bakhan v The State (PLD 1986 FSC 274)

1) Confession must be made without fear/pressure and it is a duty

of the Qadi to be satisfied about it.
2) In order to ascertain the above the court must allow the
accused time & opportunity to have a legal advise and the legal
consequence also should be explained.
3) The court must also verify that the confessor is not sick /insane
and in fit state of mind.
4) Must be made in 4 X and in 4 different sitting so that the
confessor is out of the sight of court & away from the police’s
pressure before coming back for the subsequent confession.
2) Baligh & Mumayyiz
• Generally jurist agreed that admission by an infant is
invalid.
• i) Hanafi : Baligh is not a requirement .
- Al- Nisa : 6

ii) Shafi’e, Maliki & Zahiris

-Give the opposite view.
Reason: mumayyiz is like an infant who is not
criminally responsible.
-S. 18(2):
3) Made voluntarily
- Admission made under duress or coercion is void.
- s. 18 (1) (e) –

- Art. 1575:
- Hadith :
- My ummah is excused in case of mistake, forgetfulness
and coercion.
 What would amount to coercion?

1) Abd. Al- Qadir ‘Audah:

“A force (al-ikrah) is used by a person against another so as
to deny the latter’s consent & choice”.

2) Al-Sarakhsi:
“An act which a person does to another so as to deny his
consent or causing him to lose his right of choice”.
 Conditions to constitute coercion as to invalidate
iqrar

1) Person using coercion is capable of enforcing what he is

treating to do

2) The victim is under the apprehension that the person

coercing will do what he threatens to do if the victim does
not obey and the victim is not capable to escape from
him..

3) The threat must be immediate.

4) The threat indicates of causing injury to body, part of the

body/property/person closely related to the victim (e.g
husband, wife, children etc.)
Cases :

• Mohammad Amin v The State

• Mokhtar bin Pangat v Pendakwa Jabatan Agama Islam Wilayah

Persekutuan

• Halimah V Pendakwa Jenayah Kelantan

• Abdul Razak Othman v Ketua Pendakwa Syarie Melaka

• Pendakwa Syarie v Jalil Embong & Zaleha Endut

4) Free from tuhmah /biasness
- Confession should be made free from any tuhmah
(biasness) / shubhah (doubt).

- Reason : Tuhmah supports the probability of the iqrar

being false rather than true.

Maxim : Art. 73:

“There is no proof with probability resting
on good grounds”
• Maiz case- the Prophet only convicted and punished
him after his 4th confession to avoid any
tuhmah/shubhah.
• S 17(2)(b) –extra judicial confession
• S. 96 - Syariah Criminal Procedure (FT) Act 1997
• S 60(1)-Syariah Criminal Procedure (FT) Act 1997

Cases:
• Mustafa Batcha v Habeeba (1990) 7 JH 255
• Pegawai Pendakwa MUIS v Hj. Adib (1988) 6 JH 306
5) Muqir is not prohibited to administer her/his property.
• S. 18(1)(f)
• Art. 1576.
• E.g . Bankrupt

6) Muqir must clearly known and clearly identified so

that the muqirun lahu can make a claim against him.
- Admission through agent ?
- Based on the practice of the companions
-Art. 1516: Both the plaintiff and defendant can
appoint whom they wish as wakil for
litigation. The consent of the other is not
condition
Divided into 2:-
1) Civil matters
- Art. 1517 & Hanafi: Valid provided it was made
before the court of competent jurisdiction.

2) Criminal matters
Jumhur agreed that in hudud and qisas - void and
unacceptable.

Imam Ahmad, Shafi’e & Zufar : Void in any case.

Malik: Valid if authorised by the principal
7) The muqir must be serious with what he was
saying.
Seriousness can be determined trough the words
used, surrounding circ.

8) The muqir make iqrar with full understanding of

what he is saying and the effects as well.
- E.g Maiz’s case
- S.96 - Syariah Criminal Procedure (FT)
Act 1997
9) Other additional conditions (according to some
jurist)
• Freedom is not a requirement
• Healthy is also not an absolute condition
• Muslim is not a requirement

##Therefore iqrar made by a slave, sick or non-

Muslim is acceptable.
 CONDITIONS OF THE PERSON FOR WHOM
ADMISSION IS MADE
(‫)ﻣﻘر ﻟﮫ‬
1) Must be capable of holding right and property
2) Must not have waived his right to the benefit of the
admission such as by denying the truth of the iqrar
made.
3) Must be known even though in the form of fetus in the
womb of the mother.
4) It is not a requisite that he must be of sound
mind/attained puberty. S. 18(3).
• Art. 1574.
 CONDITIONS OF THE RIGHT/FACTS ADMITTED /
‫ﻣﻘر ﺑﮫ‬

1) Should be acceptable and probable by a reason / syara’

2) In criminal matters, it must be clear and specific.
3) In civil matters – it may be general without any
specification
4) Absolute without any qualification.
5) should not implicate the right of others.
 CONDITION FOR LAFZ /SIGHAH

1) Clarity of the statement

- Clear and understandable which reach the level of
certainty.
- Must be absolute and unequivocal which confirm the
related issue.
- E.g Maiz’s case
“ I did it as a husband do it to his lawful wedded wife”.
SPECIAL CONDITION FOR HUDUD & QISAS
CASE

1) ADULTERY
• No. of admission
i) Hanafi & Hanbali : 4X
- Maiz’s case. The Prophet avoided him for three times
by asking him to repent to Allah. It was after his 4th
confession, he was stoned to death.
• ii) Maliki & Shafi’e – single confession is sufficient
Authority:-
i) Nature of confession itself
ii) Aseef case – the decision made by the
Prophet did not specify any no. The Prophet
just ordered Unais to go to the woman, if
she confessed stone her to death.
iii) Woman from Bani Ghamid- Did not make more
than 1 confession before the Prophet.

###Counter argued by the proponent of the first group.

▪ Azmi bin Ariffin & Maimon bt Abdullah V Pendakwa
Mahkamah Syariah Melaka (1990) 7 JH 80
▪ Mst. Bakhan v The State

2) Must be made orally

- Hanafi: Written/gestures –unacceptable &
hadd cannot be imposed.
- Shafi’e : Accept admission of a dumb
person using sign language
- Art. 69 & Art. 70
3) Detail explanation
i) Hadith reported by Ibn. Abbas that the Prophet said:
“You might have kissed her, or you have embraced
her or you have cast at her with lust. Do you know
what is zina? Yes! I have had such a sex with her
unlawfully that a married man does it legally to his
own wife”.

ii) According to Abu Hurairah, the Prophet in further

enquiry asked him, “Did you commit zina with her in
such a way until your penis was concealed in her
vagina? His reply was in the affirmative.
4) Must be capable of penetration (Hanafi & Hanbali )
5) Muslim (Abu Hanifah, Maliki & Muhammad)
6) Before the court (Hanafi)
Section 17(2) (b)
- Hj. Adib case.
 THEFT & HIRABA

1) No. of confession
i) Hanbali, Abu Yusuf & Zafer – 2X
ii) Jumhur & Zahiris - Single confession

2) Claim have been made by the person whose

property is stolen (Abu Hanifah & Muhammad)
- Hadith:- where the Prophet delayed the
pronouncement of the verdict till he found out the
aggrieved party who confirmed the confession that
had been made.
• Abu Yusuf disagreed.
 DRINKING KHAMR

1) No. of confession
i) Hanbali, Abu Yusuf & Zafer : 2X

2) Should be made immediately before the smell

disappeared (Abu Hanifah & Abu Yusuf)
Muhammad al- Syaibani disagreed.
 OTHER HUDUD OFFENCES

• All jurist agreed that it can be established by a single

confession.
• But for qazf – must be repeated twice (Zahiris)

• Qisas – Once
• Ta’zir - Once.
 EFFECT OF IQRAR

Only bind the maker

Authorities:-
• Art. 78
• Art. 79
• Case Maiz
• Case of Asef saying :” O Unais ….
• Case: Abdul Wahab v Timbalan Pendakwa Mahkamah
Syariah Selangor (JH (1981-82) 2, 281.
The accused made confession for the offence of
khalwat and has been convicted.
 Effect of confession on co-accused

1) Criminal matters
• Not effected
• Authority:-
i)Hadith reported by Sa’d al Sa’idi
ii)Hadith related on the authority of Abu Hurairah
iii) Art. 78
iv) Art. 79
Case: Saiful Rehman and another v the State
Mst. Safia Bibi v The State
Mst. Zubaida Begum
• Civil Matters
• In certain situation it would affect indirectly the
interest of the people other than the confessor.

• E.g when married woman with unknown

paternity admits that she is the daughter of her
father in law, and the father affirms it. The
marriage need to be dissolved. (Her iqrar affect
other person i.e the husband).
 RETRACTION OF IQRAR
• All jurist agreed that it is permissible although after
the court has passed the judgement.
• Maiz case
• Effect - depending on cases.

• 1) rights of individual/people
Cannot be retracted
Reason: Right of human being cannot be nullified by
doubt as the case of retraction.
• E.g Qisas : Cannot be retracted as it
involve the right of people.
Ariff Nawas Khan v The State
2) Hudud
• i) Pure right of Allah
Valid – Hadd will be commuted to ta’zir punishment.
e.g Zina

Authority:-
i) - Maiz’s case- The saying of Prophet when hearing
the attempt by Maiz to escape:-“ I wish you should
had left him and brought him to me.”
ii) - Retraction creates doubt.
ii) Combination of the right of Allah and mankind
Allowed, but retraction only removes hadd
punishment but man’s right remain unaffected.
- Hadith : It is incumbent upon the person to return
what he has taken out of others possession

3) Ta’zir :
X be retracted.
Anwarullah : in case of takzir, it cannot be retracted .
Ta’zir punishment still enforceable
although it has been retracted.
 Issues:
1) Theft case – shahadah + iqrar – retracted
•No hadd punishment – ta’zir- but mandatory to pay the
value of the property.

2) What if after retraction, the case can be proved through

shahadah?
•Zahiri, Maliki & Ahmad : Hadd can be imposed based on
shahadah
•Shafi’e: Hadd cannot be imposed as retraction create
doubts. Thus, cannot after that imposed hadd based on
shahadah.
 Cases:
•Che Lah v Pendakwa Jenayah Kelantan
•Faridah v Pendakwa Jenayah Kelantan
•Pendakwa v Awang Mat Isa
•Pegawai Pendakwa MUIS v Hj. Adib Datuk Said Besar
Sagoh
•Pendakwa Syarie v Mohd Zulkifli bin Adam & Anor
•Pendakwa Syarie Pahang v Kartika Seri Dewi binti
Shukarno
Iqrar in Pakistan & Brunei
 Qanun Shahadah Order 1984 Pakistan

• Def : section 30 ( oral & documentary only)

• Any confession being made before police officer not
to be accepted
S 38 – confession to police officer
S39- confession being made whilst he is in the
custody of a police officer is not to be accepted
unless it was made in the presence of a
Magistrate.
 Effect of confession

• 43. When more persons than one are being tried

jointly for the same offence, and a confession made
by one of such persons is proved-
• (a) such confession shall be proof against the person
making it; and
• the Court may take into consideration such
confession as circumstantial evidence against such
other person.
##confession affects the confessor only but can be accepted as
circumstantial evidence to others who jointly charged for the
same offence)
• Confession in Zina case
• Pakistan, section 8(a) of the Offence of Zina
(Enforcement of Hudood) Ordinance 1979:-
proof of zina liable to hadd if the confession was made
before a court of competent jurisdiction.

• Mst. Bahkhan v. The State

• The confession must be made four times and at
different sittings so that the accused is out of the
sight of the Court and away from the Police or
parties' pressure before coming back for subsequent
confession
Confession in theft/ robbery
• S. 7(a) of the Offences Against Property
(Enforcement of Hudood) Ordinance, 1979:
• "the hadd punishment can be imposed when the
accused pleads guilty of the commission of theft
which liable to hadd.”

Confession in drinking liquor

• s. 9(a) of the Prohibition (Enforcement of Hadd)
Order, 1979: "the proof of drinking liable to hadd
shall be (when) the accused makes before a Court of
competent jurisdiction a confession of the
commission of drinking liable to hadd”
 Retraction of confession

• S.10, Prohibition (Enforcement of Hadd) Order, 1979:

• (1) Hadd shall not be enforced in the following cases,
namely:-
• when drinking is proved only by the confession of the
convict but he retracts his confession before the
execution of hadd.
• Mst. Zubaida Begum v. The State
"The retract confession in Islam has never been
made a basis of conviction against an accused
person".

• Muhammad Naseer v. The State

“Confession, in order to be effective, must not
have been retracted. Again, if it is retracted before
the execution of the Hadd sentence, the
sentence shall not be executed.
• Arif Nawaz Khan v. State
• According to a narration, when Maiz felt the
intensity of the rajm punishment during stoning,
he tried to escape but those who were deputed
for the purpose, followed him and continued
stoning him till death. When this incident was
brought to the notice of the Holy Prophet, he
said, “why did you not let him go”.
• Thus, the Holy Prophet s.a.w. equated his escape
to retraction.”
Retraction in zina (sole right of Allah)
• s.9(1), Offence of Zina 1979:
• No hadd punishment can be enforced if the convict
retracts his confession before the hadd or such part
is enforced.

Retraction in theft/robbery (combination of right of

Allah and individual)
• Offences Against Property (Enforcement of Hudood)
Ordinance 1979.
• Cases in which hadd shall not be enforced:
• S11(1)(a) When theft is proved only by the
confession of the convict, but he retracts his
confession before the execution of hadd;
Arif Nawaz Khan and 3 others (Appellants) v. The
State

“In Islamic law, so far as retraction from confession

is concerned, it has two aspects: If an admission
is made in respect of an individual's right it
cannot not be retracted by the maker of
admission against himself on the principle, a
man is caught by his admission; if it is made in
respect of the right of Allah (or the society) it can
be retracted”
 Syariah Court Evidence Order 2011
(Brunei)
• Definition of ikrar:
• S20: a statement made by a person orally, in writing
or by gesture that he is under some obligation to
another person in respect of some right.

• Effect of ikrar
• S21 (1): ikrar made by a person is binding on the
person making the ikrar.
• (2) ikrar outside court only admissible if made before
2 witnesses adil
• (3) representative ikrar in a proceeding on behalf
of the person granting the representation made
before a judge is admissible

• S22: ikrar is a final proof on the person making

ikrar and is not a proof against any other person
 Conditions of ikrar

1) Person makes the ikrar

S23: Conditions of Ikrar

• (1): made by person who is ‘akil, baligh
• (2): ikrar by minor, lunatic, wali/wasi are not
admissible
• (3) ikrar by minor who has been authorized by wali to
carry on a business or deal with public shall be
regarded as ikrar of an adult and admissible
(4) do the ikrar solemnly
(5) shall be acknowledged and identified
(6) shall take note of the matters in his ikrar
(7) not mahjur ‘alaih (brankuptcy, minor, insane)
(8) made by dumb or deaf is admissible if he can write
or sign which can be understood except in hudud cases
(9) under circumstance of marad al maut concerning
the right of another person against him is admissible
 2) person who benefits the ikrar
•S23(4): not necessarily ‘aqil, baligh

3) Sighah
•S23(5) Absolutely and voluntarily
•(10) Not be made during the state of intoxicantion
for cases involving hudud
• Ikrar in zina cases
• S24: the accused can be punishable or conviction by had
if the ikrar is made (a) before the court, (b) made orally,
(c) clear stating the commission of the offence, (d) made
on 4 separation occasions

• Retraction of ikrar in zina cases

• S25(1) may be withdrawn :-
(a) before conviction,
(b) after conviction but before the implementation of
punishment,
(c) during implementation of punishment
• (2) Hudud punishment will not be imposed