Q. What is competence witness under Islamic law. Can a woman be a competent witness. (1996, 1998, 2000, 2001, 2002, 2004/S)
Q. Who is competence witness under Islamic law? (2004/A)
Q. What are qualification of witnesses for testifying. Discuss the status of woman as a witness. (2005/S, 2007/A)
Q. What are the conditions prescribed in Islamic law for a competence witness. Also discuss the position of woman as competence witness. (2006/S)
“Under the Islamic law, it is the duty of the witnesses to come forward and give testimony. Witnesses is the medium through which facts can be proved. Islamic law has provided certain qualifications and disqualification for the persons to appear as witness.
2. Meaning of competency of witness
“A witness is said to be competent if there is nothing in law to prevent him from being sworn in and examined, if he wishes to give evidence.”
3. Doctrine of Tazkyat-Ush-Shahood
In Islamic law of evidence the doctrine of Tazkyat-Ush-Shahood is very important. It means that those witness who appear before a court, the court would make inquires about the background and character of such witnesses.
Kinds of Tazkyat-Ush-Shahood
It has two kinds:
(i) Declared Tazkyat-Ush-Shahood.
(ii) Secret Tazkyat-Ush-Sahaood.
4. Importance of testimony
The importance of giving testimony has been provided by various verses of Holy Quran.
“Don’t conceal testimony, He who conceals it, his heart is sinful” (Al-Baqrah: 282)
“Whenever Ye speak, speak justly even if a near relative is concerned.” (Al-Inam: 152)
“Never try to mix up wrong with right and do not conceal the truth intentionally:” (Al-Barah: 42)
5. Qualifications for a competent witness
A witness competent to testify must have the following qualification.
(I) Not prevented from under standing
A witness should not be prevented from understanding the question put to them. A witness maybe prevented from understanding due to the tender age, old age or disease, whether of body or mind.
(II) Not convicted by court for perjury
A witness should not be convicted by court for perjury or giving false evidence
A person convicted may be competent to testify as witness, where the court before which he appears is satisfied that after conviction, he has repented and amended his ways.
(III) Freedom from prejudice and bias
A witness must not be prejudice or bias, hence the testimony of following witnesses is inadmissible.
(i) Father in favour of his son and vice versa.
(ii) Slave in favour of his master.
(iii) Parties in support of their own claim.
(iv) Person who bears a grudge against the opposite party.
(v) Non-Muslim against a Muslim etc.
(IV) Reliability of character
The witness must be of reliable character.
According to Hanafis:
According to Hanafis, a witness is said to be of reliable character if his religion and reasons overcome his lust and when and he also avoid major sins.
According to Maliki’s:
According to Maliki’s and Shaft’s a person is of reliable character if he avoids major sins and he must also be a trustworthy person.
Tazkiah is an obligation on Qazi for ascertaining the competency and righteousness of a witness by himself or through the medium of purgatory when competency of witness is challenged, that
(i) The witness should be clean from deeds which attract Hadd punishment
(ii) The witness should be free from sins
(iii) The witness should be Adil
A witness must be a person of mature mind and understanding.
A witness must posses eye-sight in case of facts capable of being seen.
A witness must possess the capacity to speak or communicate in cases of Huded.
A witness must be of good memory and person of bad memory is not considered as a competent witness.
The jurists agreed that Islam is a condition for the acceptance of testimony and the testimony of disbeliever is not permitted but the jurists did not agree regarding its permissibility in bequests made on a journey. Abu Hanifah said that it is permitted upon the conditions mentioned by Allah, while Malik and shafi said that it is not permitted.
6. Condition for giving testimony
(i) Existence of complaint and the requisition of the testimony.
(ii) Testimony is to be given before the court.
(iii ) Witness has the personal knowledge of the facts to be stated except in cases where hearsay evidence is admissible.
(iv) The word shahadat must be used in the beginning
(v) Witness must remember the incident.
(vi) Witness must be able to identify the parties
(vii) Conformity of the statement with the claim.
(viii) In Hudud cases (Qadhaf) facts must not occurred in the distant part.
7. Competency of women as witness
The competency of women as a witness is discussed under the following heads.
(I) Competency in Hudud cases
The competency of a women in cases, belonging to the category of violation of right of Allah, viz Hudud, is that she is regarded as incompetent.
(II) Competency in cases where violation of right of individual is involved.
In cases where violation of right of individual is involved such as Tazir, the testimony of women is accepted if the prescribed Nisab is observed, that is the testimony of one male and two female witnesses.
(III) Financial transactions
In matters relating to financial or future obligations, the testimony of two woman is accepted with one male.
(IV) Specific matters where testimony of women is needed
Testimony of woman in matters which are generally known to women such as whether a particular child was bon to a particular woman, can be proved even by the testimony of single woman.
(V) Other matters
I other matters, a court may accept and act upon the testimony of one woman.
Note: it is necessary that a woman must possess all other qualifications of a competent witness.
8. Position in Pakistan
The competency and number of witnesses are provided article 3 and 17 of Q.S.O, 1984 respectively, Article 3 provides that a witness must not prevented from understanding and is capable of giving evidence and qualified a witness under Holy Quran and Sunnah, whereas Article 17 provides that the number of witnesses required to prove a fact is to be determined in accordance with the injunctions laid down in the Holy Quran and Sunnah.
To conclude, I can say, that the necessity mostly arises in cases when the fact in question has originated a right in some one against another and the latter denies it, but there are certain reasons which induce men to tell falsehoods or the circumstances. Which prevent them from giving correct and reliable information, so the Islamic law has provided certain qualifications for a competent witness.