CHAPTER 38:A Chapter on Judgement and Evidence

38.01 COURT PROCEDURE

The onus of proving an allegation is upon the plaintiff. If the plaintiff fails to prove his allegation and the defendant denies the charge, the defendant must take an oath to clear himself. The taking of an oath cannot be considered until it has been confirmed that some transaction has taken place between the litigants or when there is a strong suspicion that a transaction has taken place between the parties. This is the manner in which the judges of Medina conducted their cases. Umar b. Abd al-Aziz has said, "Problems arise for people in proportion to the amount of sins they committed". If the defendant should refuse to take the oath to clear himself, judgement cannot be given in favour of the plaintiff unless he (the plaintiff) takes an oath to buttress his allegation. The form the oath takes is, "Bi-llahi-lladhi la ilaha illa huwa", meaning, "I swear by Allah besides whom there is no other deity".

The person taking the oath shall do it standing up at the pulpit of the Prophet S.A.W.S. when the value of the property in dispute is at least a quarter of a dinar. In places other than Medina the litigant takes an oath in respect of such an amount (quarter dinar) in the congregational mosque and at the place most respected in it. A non-Muslim shall swear by Allah in a place be venerates. If the plaintiff should discover some evidence he was not aware before, after the defendant has already taken an oath, judgement is reversed in his favour an account of it. But if he was aware of the evidence and failed to bring it before, it is rejected. But according to another view it can be accepted.

In respect of property, judgement can be given in favour of the plaintiff if he is able to bring only one witness to testify for him and he himself takes an oath to supplement the witness. But this is not acceptable in respect of a marriage, a divorce, or over a case which carries a hadd punishment. Also it is not acceptable in a case of injuries or homicide, except when the latter involves qasamah oaths. Qasamah oaths consists of fifty oaths. According to another authority judgement can be given in favour of the plaintiff in respect of injuries when one witness is produced and this is supplemented by an oath.

38.02 TESTIMONY OF WOMEN

Evidence given by women in inadmissible except in respect of property. The weight of evidence given by one hundred women is equal to that given by two women only, which in turn equals that of a single man. Such evidence (of women) can be accepted along with that of one man or accompanied by an oath, so that judgement is then given in favour of the plaintiff over a case which can be established by a witness and an oath.

The evidence of two women only concerning an affair which men cannot be conversant with, such as giving birth, the crying of a baby just born and similar things, is admissible.

38.03 REJECTION OF WITNESS BECAUSE OF CHARACTER OR RELATIONSHIP

The evidence of an adversary and a person whose sincerity in his faith is doubted is not admissible.

Only men of integrity can be accepted as witnesses. Also, the evidence of a man who has received hadd punishment, or a slave or a child or an infidel, is not permitted.

If a person who received hadd punishment on account of committing fornication has repented, his evidence can be accepted except in respect of fornication.

The evidence of a son in favour of his parents is not permissible and vice versa, nor shall the evidence of a husband in favour of his wife be accepted and vice versa. The evidence of an upright brother in favour of his brother is permissible. The evidence of a person who is known to have lied repeatedly and a person who commits mortal sins openly is not permitted. Nor can the evidence of somebody who will benefit from his evidence or one who will be defending his personal interest be admitted. Further the evidence of a testamentary guardian in favour of his orphan cannot be accepted, but his evidence against the orphan can be accepted.

38.04 TESTIFYING TO THE CHARACTER OF A WITNESS

Women are not permitted to commend people in giving evidence nor are they permitted to discredit people in giving evidence. The only acceptable words in commending a person to give evidence is to say "Adlun Rida", meaning he is a person of integrity. One person is not acceptable whether in respect of commendation or in respect of discrediting.

38.05 TESTIMONY OF MINORS

The evidence of children is acceptable in respect of injuries before they disperse from the place of an incident or before an adult person comes into their company.

38.06 SALE DISPUTES

If a seller and buyer disagree concerning the price of the subject matter (commodity), the seller shall be required to take an oath then the buyer is forced to accept the commodity at the price the seller mentioned. Conversely the buyer can take an oath and the contract shall cease to be binding.

38.07 OWNERSHIP DISPUTES

If two litigants disagree over something which they were both holding, they are required to take an oath, each supporting his claim. The commodity is then divided equally between them. And they should produce two evidences supporting the conflicting claims. The more dependable one is upheld and judgement is given in its favour. But if the strength of the conflicting evidences is equal, the two litigants shall swear each supporting his claim and the commodity is then divided between them.

38.08 REVOKED TESTIMONY

If a witness should recant after judgement has been given based on his evidence, he is then ordered to pay damages for the losses incurred through his evidence, that is, if he has confessed he committed perjury. That was what the companions of Malik stated.

38.09 WORD OF A DEPUTY (WAKIL)

38.10 WORD OF A GUARDIAN (WALI)

If a person alleges that he has returned a commodity over which he has been an agent to the principal, or to sell, or if he claims to have given to the principal its value, or that he has returned a trust (wadi'ah) to the person who had given it to him, or if he has claims to have paid the capital advanced to him to trade with, he is to be believed after taking an oath. If a person claims to have delivered a message sent through him to third party and the third party denies receiving the message, he must produce an evidence to support his claim; failing this he is liable to make good the loss.

A testamentary guardian claiming to have spent an amount on the maintenance of his orphan, or to have handed over to them their property, must furnish evidence that he has in fact done so. But if they are under his direct custody he is to be believed in his claim to have spent an amount in maintaining them, if that seems likely.

38.11 AMICABLE SETTLEMENTS (SULH)

A compromise is lawful except when it leads to something which is unlawful. It can take place upon an admission or a denial.

38.12 SLAVE WOMAN MARRYING ON IMPRESSION SHE IS FREE

If a slave woman deceives a man, pretending that she is a freeborn woman, and the man marries her on that understanding, then her master is free to take her back and to take the value of any child she may have borne by that husband. This value is to be calculated on the day the judgement is given.

38.13 VINDICATING OWNERSHIP OF A SLAVE WOMAN

If a man should claim that a particular slave woman belongs to him (who has given birth to a child) he is entitled to take her value and the value of the child on the day the judgement was given in his favour. But according to another view he takes the slave-woman herself and the value of the child. Yet again according to a third view he is only entitled to her value, unless he prefers the value which he can then take from the person who abducted her and who has sold her away. But if she is still in the hands of the abductor, then the abductor must be given the hadd punishment for fornication, and their issue shall remain a slave along with the mother to her true master.

38.14 VINDICATING OWNERSHIP OF LAND

If a person recovers a piece of land after it has been developed, he shall pay to the developer the value of the development as it stands. If he should refuse to pay the value of the development then the person who bought the land shall pay to him the value of the land without development. If he should reject that then they shall be joint owners of the property, the former owning the value of the property before development and the latter owning the value of development. But if the land was usurped, the usurper is to be ordered to demolish his building or uproot the plants and trees he has planted on the land. But if the usurper likes, he can receive the value of the development he effected as a debris and the trees he planted as they would be when uprooted after the value of the labour of demolishing the building and uprooting the trees has been deducted from value of the debris and the uprooted trees. The true owner of the land shall pay nothing in respect of those trees which shall have no value after extirpation, or those things which shall have no value after the buildings are demolished (such as engravings or wall decorations).

38.15 INCREMENT OF USURPED GOODS

Besides, a usurper must return the revenue he realised to the true owner from anything he usurped. But people who acquire ownership of anything through lawful means shall not give back what they gained, if the property turns out to have been usurped.

The offspring of an animal or a slave woman, if in the case of a slave woman the baby was not from the new master, shall be taken over by the true owner, when he recovers the right to take the mother back from the person who bought them or else gained possession of them by some lawful means, but nevertheless lawfully.

If a man abducts a slave woman and then has intercourse with her, if an issue results, the child shall be a slave; moreover, such a man shall receive the prescribed hadd punishment for adultery or fornication as the case may be.

38.16 BUILDING REGULATIONS

(In a house of two storeys) it is the responsibility of the person who owns the ground floor to maintain it. It is also his duty to furnish the timber needed for the roof. It is also his responsibility to make the rooms on the ground floor stronger when they become weak and dilapidated so that it will be secured. Further the owner of the ground floor is compelled to maintain his rooms or to sell them to someone else who is willing to keep then repaired. For the tradition of the Prophet S.A.W.S. says, "Do not harm others; and when you are harmed, do not exceed in retaliation the harm done to you". (La darara wa la dirar.) So also a person must not harm his neighbour by opening a window in his direction thus depriving him of privacy, or by opening a door opposite to his door, or by digging in a place that can harm his neighbour even if it is within his own property.

In a dispute between neighbours the ownership of a wall is given to the person who provided the timber or stone in it, thus strengthening it.

38.17 WATER SUPPLIES

Surplus water should not be denied to others to force them to desert and leave a pasture. Those who dug wells to water their flocks have greater claim to them. They must therefore be given the priority to water their own flocks before others. After that other people shall be equal in the right to use them. Whoever has a spring or well in his land is free to prevent others from using their water, except where the well of his neighbour collapses and the neighbour happens to have plants which he fears will wither. In such an instance he must not deny his neighbour the surplus water. Jurists have differed in their views as to whether he can demand payment for the water.

38.18 ANOTHER BUILDING REGULATION

It behoves a person not to prevent his neighbour from planting his timber (that is the neighbour) next to on his wall. But a person cannot be forced by law to accept that.

38.19 DAMAGE BY ANIMALS

The damage done by animals during the night shall be the liability of their owners. But they shall pay nothing due to damage caused by their animals during the day.

38.20 BANKRUPTCY CLAIMS

If a person finds his property among the assets of a bankrupt person, he can either take its value in relationship to how it stands in ratio to the assets as against the liabilities, or he can recover his property if he can identify it. But in the event of death he must share the property of his debtor along with other creditors.

38.21 GUARANTEE OF DEBTS

Anybody who gives a guarantee shall be liable to pay for the loss of or damage to the property on respect of which he gave the guarantee. A guarantor shall be liable to make payment in the event of his failure to bring the person in respect of whom he has given the guarantee unless he stipulated that failure on his part to bring the debtor shall not make him liable to pay the debt.

38.22 TRANSFER OF DEBTS (HAWALA)

If a creditor agrees to receive payment of a loan he advanced to someone from a third party, then he cannot go back to the debtor and demand payment, even if the third party becomes bankrupt, except where the third party deceived him.

An assignment shall be in respect of an original loan, otherwise it is a mere guarantee.

38.23 MORE ON GUARANTEE OF DEBTS AND BANKRUPTCY

A guarantor shall not be liable to pay the debt of a debtor he guarantees, except where the latter is insolvent or absent.

Further, the moment a debtor dies or becomes bankrupt, all debts on him becomes due for payment. But debts others owe him shall not be due for payment.

A slave who is permitted to trade shall not be sold in order to pay his debts with the proceeds, nor will the debt be transferred to his master. A debtor is imprisoned so that his condition might be known, but a person known to be insolvent shall not be imprisoned.

38.24 APPORTIONMENT (QISMA) OF JOINTLY OWNED PROPERTY

Anything which can be divided without being damaged shall be divided (and each of its joint owners given his share in the event of a dispute), such as houses and farms. But a thing which cannot be divided easily shall be left intact. It is unlawful to divide it.

In a joint ownership, if one person calls for the division of the property and another refuses, the court shall have the power to compel the acceptance of division upon the party who rejected it.

Division by lots can only take place if the articles to be divided are of the same type. None of the joint owners shall be given cash as his share (while another receives a share in kind).

When it comes to dividing two articles of unequal value, the joint owners shall agree between themselves that the person to whom the more valuable commodity goes shall compensate the person to whom the less valuable article goes.

38.25 FUNCTION OF A TESTAMENTARY GUARDIAN-EXECUTOR (WASI)

38.26 SQUATTERS RIGHTS

The testamentary guardian of a testamentary guardian is like the original testamentary guardian. The testamentary guardian is permitted to trade with the property of the orphans entrusted to him; he is also permitted to give away in marriage their slave girls. If someone appointed an unreliable person as a testamentary guardian such a person is to be removed.

(In the event of death) the priorities in disposing of the deceased's property are as follows. In the first place, the shrouds are bought, then debts are paid; after wills are executed the rest of the estate in then distributed to those entitled to it as inheritance.

If a person possesses a house in the presence of another for ten years, it shall then be taken as his own property. If the latter person subsequently claims it, and was present and aware of the situation and does not show any genuine reason for his silence, the court shall not give it to the claimant. But 'hiyazah' or the kind of possession which subsequently confers ownership cannot be valid within ten years in respect of relatives and in-laws.

38.27 BEQUESTS

It is not lawful for a sick person to make an admission that he owes one of his heirs a debt, or to admit that the heir has paid him a certain debt.

If a man made a will that pilgrimage shall be performed on his behalf, such a will is to be executed. But a will for alms to be given is more favourable to Maliki jurists.

If a person hired to perform pilgrimage on behalf of another dies before reaching the holy land, he shall be paid wages in proportion to the distance he covered. The rest of the money is then returned to the rightful owners, and whatever he spent shall be part of his wages.

But if the agreement entered upon with the person hired to perform pilgrimage was that he shall have nothing until after having performed the pilgrimage, then the total amount given to him must be returned to the heirs of the person on behalf of whom the pilgrimage was to be performed. Those who hired him on behalf of the family of the deceased shall be liable to pay that amount. (If the person hired was able to perform the pilgrimage) he shall return the remainder of the money (to the heirs of the person on behalf of whom the pilgrimage was performed).