Proof Procedure

1- Oath :

Oath is a means of proof. If a murder was committed, but without witnesses of the crime, the kith and kin of the murdered could name a murderer but on oath. Fifty oaths had to be sworn in this case. If the accusers were fifty in number, each one of them had to make an oath, and if they were less in number, one could make more than one oath so that the fifty oaths could all be sworn. If fifty persons swore that a certain man was the culprit, this was enough to convict him as murderer. If they failed to make such an oath, the suspected person could make fifty oaths that he had not committed the crime, after which action he had to be acquitted.

Taking oath was practised before the advent of Islam, in the days of Ignorance. When Islam was introduced, the practice was approved and made lawful so that blood shed stopped and crime fought. If the criminal was not named under oath, more killings could have taken place. The Quran states that "whoever is slain unjustly, We have indeed given to his heir authority , but let him not exceed the limit in slaying . Surely he will be helped" [Surat Al-Isra' (The Ascension) 53.] "Authority" here was interpreted by the Prophet Muhammad as "oath" and in more than a saying, the Prophet had sanctioned the oath. When Abdullah Ibn Sahl was found killed in a well, the Prophet Muhammad asked his relatives to name the murderer under oath.

Jurisprudents are unanimously agreed to the legality of oath. Besides the four "Sunni" sects, Al-Zahiriyya and the “Shiites” are of the same view. But some jurists dismissed it as an evidence and mentioned in support to their view the order which was issued by Umar Ibn Abdel Aziz to his agents and judges that oath should not be accepted as evidence. Those who supported the unlawfulness of oath argued that it was contrary to religious dictates. Anyone who would name a murderer under oath was not required to have had really seen the murder. He could make the oath by suspicion and clues. To name a murderer by supposition was serious, and this was why Umar Ibn Abdel Aziz had rejected accusation of murder by oath. Al-Bukhari quoted Abou Qitabah as having reported that at a meeting with Umar Ibn Abdel Aziz, Umar asked him about evidence on oath. Abou Qilabah replied :

O, Leader of the Believers. Suppose that fifty dignitaries from among the Arabs and chieftains have given evidence that a certain man had committed adultery in Damascus, but without seeing him do the act, would you stone this man to death? " The Caliph said "No". Then Abou Qilabah said : "If fifty people gave evidence that a certain man had stolen something in Emessa , but without seeing him doing the act, would you cut off his hand?" The Emir said : "No". Abou Qilabab said : "Then how it could be that evidence by such people who had never seen a murderer at a remote place, because they were still living here, be accepted ?" Umar Ibn Abdel Aziz then decreed that if only two men had witnessed a murder, their witness would be accepted; but if fifty people gave evidence on a murder only by oath, their oath was to be rejected. However, it was appropriate to take into consideration the conviction by oath, because in such a case the blood of a murdered Muslim should not have been wasted. No Muslim blood had to be shed illegally. To the Imam Abou Hanifah, the legality of oath was based on the principle of the inability of the inhabitants of the locality in which the murdered was found to give suitable protection to the victim. Their responsibility in such a case was a civil liability.

To reconcile the two points of view, the viewpoint of the Imam Abou Hanifah on the legality of oath could be taken into account. He opined that if an accused, or more than one accused, made fifty oaths that he or they had not committed a crime, he or they should be acquitted. But if the kith and kin of the murdered were to make conviction under oath, the oath must be made on what they had already witnessed.

To Abou Hanifah, if an accused of murder failed to take oath that he had not committed the crime, he had to pay the blood-money and not be exposed to retaliation. This principle reduces the severity of its opposition by other jurists.

But the Imams Malik, Al-Shafei and Ahmed were of the view that oath had to be taken to prove a crime, and not to deny it. Oath, then, the kith and kin of the murdered had to be made by However, taking oath does not contradict the established means of evidence, whether the oath was required to be made by the kith and kin of the murdered or by those charged with the murder. Oath alone is not accepted to prove murder; it has to be supported by other evidences and clues. Judgement by clue is permissible. If the murder was committed deliberately, retaliation was to be made; and if it was a murder by mistake, blood-money was to be paid. According to Abou Hanifah, the blood-money was to be paid in both the cases; and I am of the same view.

But according to all the Islamic sects, if there were witnesses of a crime, oath was not needed.

2. Upright Testimony

According to Islam one is not to be convicted of an offence by any other man's evidence unless the witness was credible. The Quran says : "And call to witness two just ones from among you."[Surat Al-Talaq ( Divorce): 3.]

Once, a man came to the Caliph Umar Ibn Al Khattab to seek his advice and directives about a new custom which the people had been following, giving false testimony. In reply, the Caliph decreed that no-one under Islam would be even arrested without testimony.

Justice is righteousness, and there is no limit for righteousness. It is a discretional issue.

Abou Hanifah opined that a ruler was not to dispute the credibility of any witness because according to the Prophet Muhammad, all the Muslims are credible and they deal with each other in justice and fair play, except those who were punished for slander." This was also the same view of the Caliph Umar Ibn Al-Khattab. Some jurists were of the view that before giving evidence, the witnesses' credibility must be investigated by the judge. If the adversaries attacked the credibility of witnesses, their credibility must first be ascertained. If the judge failed to do so, the witness's credibility had then to be recommended by some people known to the judge. These people must be from among the man's neighbours or fellow-countrymen. The recommendation might be made covertly or overtly in the presence of the witness.