29.4 PLEAS & EVIDENCE, da'wa & shahadat

By Professor Omar Hasan Kasule Sr.


Court proceedings start with complaints, da’awa, by the plaintiff. The specific charge must be read out to the defendant with care being taken to make sure he or she understands all elements of the charge. If the claim is false it is ignored. If the claim is true the defendant is asked to enter a plea of guilty or not guilty. Care must be taken to ensure that the defendant understands and appreciates the implications of a guilty plea. If the defendant pleads guilty, he is convicted and punishments or other legal sanctions will apply. If the defendant pleads not guilty the plaintiff must produce evidence. If the plaintiff cannot produce evidence the word of the defendant is accepted on taking an oath, al yamiin ‘ala al mudda’e ‘alayhi. If the plaintiff produces evidence the defendant is allowed the right of cross-examination. The defendant can also introduce evidence of character as a defense. The plaintiff, mudda’i, has to prove his claim, al bayyinat ‘ala al mudda’e. The defendant is considered innocent until proved guilty. Evidence is oral testimony that fulfils all the conditions of ‘adalat and is binding on the court. Testimony by witnesses is a communal obligation that cannot be refused (2:83). Professional evidence is evaluated like any other source of evidence and need not be accepted all the time. In cases of huduud the judge is not allowed to base his judgment on his personal knowledge of the circumstances of the case. In non-huduud cases the judge can base his judgment on personal knowledge of the circumstances of the case. Attestation of good character is by both men and women is considered by the court.



The methods of proving a claim are admission or confession, iqraar, oral evidence, shahadat, oath, yamiin, documentary evidence, wathaiq, medical evidence, and expert witness, ra’y al khabiir. Circumstantial evidence is not used as a basis of judgment.



The conditions for accepting evidence: qat’i and not dhanni ie proof beyond any doubt, capacity and competence of the witness, acceptable witness, ‘adl: (free with full civil liberties, hurr, legally responsible, mukallaf, can speak, mentally awake, of upright character, outwardly respectable, mur’at). The defendant may give testimony voluntarily. He however has a right of silence as a privilege against self-incrimination. The burden of proof is on the prosecution. The physician is not obliged to volunteer as a witness.



In civil cases the standard of proof is balance of probabilities. In criminal cases the standard is proof beyond any reasonable doubt: dhabt, jarh & ta’adiil. Dhabt is used to refer to rigor in memory. Jarh and ta’diil refers assessing the reliability of the witness.  'Adl is a term is used by scholars to hadith to refer to a Muslim who is an adult, intellectually competent, who does not commit major sins, and does not repeatedly commit minor sins, and who has no trait that destroy social respectability, muru'at. Dhaahir al Muslim al adaalat. Yajuuz li al qaadhi an yahlifa al shuhadaa. The internal consistence of the evidence can also be used as a criterion of validity. Judgment can be made on the basis of only one witness.



In munakahaat medical evidence is used to determine age at marriage, degree of consanguinity, impotence & other causes of failure to consummate marriage, disputed parenthood, period of gestation, mental capacity, and medical defects for marital dissolution. In mawariith, medical evidence is used to determine intellectual competence of the testator, life of inheritor at death or the inheritee, gender, possible contribution of inheritors to death. In mu’amalaat, psychological assessment of competence of contractees and orphans (to be given their property). Forensic evidence us used for conviction and determination of diyat in homicide and body injury. In sexual crimes forensic science is used for determination of rape but not for zina for which a hadd punishment is prescribed.

(c) Professor Omar Hasan Kasule Sr. 2004