Hudood Law

WITNESS:
A witness is someone who has, who claims to have, or is thought, by someone with
authority to compel testimony, to have knowledge relevant to an event or other
matter of interest. In law a witness is someone who, either voluntarily or under
compulsion, provides testimonial evidence, either oral or written, of what he or she
knows or claims to know about the matter before some official authorized to take
such testimony.
PERCIPIENT WITNESS:
A percipient witness or eyewitness is one who testifies what they perceived
through his or her senses (e.g.: seeing, hearing, smelling, touching). That
perception might be either with the unaided human sense or with the aid of an
instrument, e.g.: microscope or stethoscope, or by other scientific means, e.g.: a
chemical reagent which changes color in the presence of a particular substance.
HEARSAY WITNESS:
A hearsay witness is one who testifies what someone else said or wrote. In most
court proceedings there are many limitations on when hearsay evidence is
admissible. Such limitations do not apply to grand jury investigations, many
administrative proceedings, and may not apply to declarations used in support of
an arrest or search warrant. Also some types of statements are not deemed to be
hearsay and are not subject to such limitations.
EXPERT WITNESS:
An expert witness is one who allegedly has specialized knowledge relevant to the
matter of interest, which knowledge purportedly helps to either make sense of
other evidence, including other testimony, documentary evidence or physical
evidence (e.g., a fingerprint). An expert witness may or may not also be a
percipient witness, as in a doctor or May or may not have treated the victim of an
accident or crime.
REPUTATION WITNESS:
A reputation witness is one who testifies about the reputation of a person or
business entity, when reputation is material to the dispute at issue. They are a
person who aids that because of a person’s interactions and personality the
defendant is guilty/innocent
In law a witness might be compelled to provide testimony in court, before a grand
jury, before an administrative tribunal, before a deposition officer, or in a variety
of other proceedings (e.g., judgment debtor examination). Sometimes the

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testimony is provided in public or in a confidential setting (e.g., grand jury or

closed court proceeding).
COMPETENCE OF WITNESS:
Article 3 of the Qanoon-e-Shahadat Order 1984 deals with the competency of a
witness. A witness is a person who deposes some relevant fact in an issue or
testifies in order to prove or disprove any matter in question. It is worth noting here
that, the competency to testify as a witness is a condition precedent to administer
witness on oath, and is a distinct matter from the credibility of the witness.
RELEVANT PROVISIONS:
Article 3 and 17 of the Qanoon-e-Shahadat Order 1984
INTERPRETATION OF RELEVANT TERMS:
COMPETENCY:
Competency of witnesses as provided under Article 3 of the Qanoon-e-Shahadat
Order 1984:
Article 3 provides that in general every person is competent to testify before the
court, the only parameter to determine the competency of the witness is satisfaction
of the court that the person before the court is capable of giving testimony.
However, this general principle is qualified by the Article itself by providing the
following exceptions to it.
INCAPACITY TO BE RATIONAL:
In general if a person is unable to understand the question put to them or give a
rational answer, he or she is barred to testify as a witness to the suit.
EXTREME OLD AGE:
If a person has lost his or her consciousness due to extreme old age to the extent
that he or she is unable to understand the question put forward or to give a rational
answer, the testimony is inadmissible before the court.
TENDER AGE:
A minor is restricted to testify any fact before the court if he or she is not yet able
to understand the question put forward or to give rational answers to the
said questions. But if, minority or tender age has not created any obstacle to
understand the question or to give rational answers, the testimony will be counted
as valid.

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ANY BODILY INJURY:

If bodily injury is of such type that it renders the witness unable to understand the
question put to him or to give rational answers, the witness’s testimony is
inadmissible. Seeing, speaking and hearing inabilities are examples of such injury
but if such inability can be overcome then the witness becomes valid.
ANY MENTAL INJURY:
A mental incapacity also puts a bar on the ability to testify any fact in an issue.
PERJURY:
Perjury is an offence, it is to deliberately give false evidence before the court. Any
person who has been convicted for perjury is debarred from testifying any fact
before the court. Such person cannot be considered a trustworthy witness.
However, if in the opinion of the court said person is penitent, then the testimony
can be accepted.
CONCEPT OF WITNESS IN ISLAM:
Witness is person who comes before court and gives his evidence to prove or
disprove any fact. Islamic law imposes certain qualifications for a competent
witness.

TAZKIYA AL SHAHOOD:
The mode of inquiry adopted by court for judging credibility of witness. Tazkiah-
al-Shuood means purification of witness. A witness must fulfill the conditions of
Tazkiah-al-Shuood as laid down in Holy Quraan and Holy Sunnah.

CONCEPT OF TAZKIYA AL SHAHOOD:

According to Islam the concept of Tazkiya al Shahood is defined as the “purgation
of witness”.
MODES OF CONDUCTING TAZKIYA:
According to Fatawa-e Alamgiry there are two modes of conducting Tazkiya;

1. Open inquiry as to the competency of a witness; or

2. Secret inquiry into the competency of a witness.

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Open inquiry is conducted by asking people to give their opinion by either raising
hands or by oral testimony. However, secret inquiry is conducted through writing –
this method is called “masturah”.
PERSONS WHO CAN BE QUESTIONED:
Help of the following persons can be taken while conducting Tazkiya;

1. Persons who are reliable;

2. Persons who are acquainted with the life and character of the witness whose
competency is being challenged.

PURPOSE OF INQUIRY:
The purpose is to make an independent inquiry into the conduct of the witness.
This must be done through an independent and reliable source so that a person is
not condemned on the “evidence of unjust person”.
NUMBER OF WITNESSES:
The Article states that guidance as to the required number of witnesses in order to
prove or disprove any fact in an issue shall be taken from the injunctions of Islam,
as laid down in the Holy Quran and Sunnah. However, this Article embodies the
required number of witnesses in various circumstances.
NUMBER OF WITNESSES IN FINANCIAL MATTERS:
In financial matters, two male witnesses, or one male and two female witnesses (so
that one may remind the other if one forgets), are sufficient.
Number of witnesses required in cases of future obligations:
Two male or one male and two female witnesses are sufficient.
IN CRIMINAL MATTERS:
One male or female witness is sufficient.
IN HADOOD CASES:
Matters in this case may be proved either by confession of the accused or by
testimony of two or four witnesses (varies from cases to case).
VERSES INCLUDING THE WORD WITNESS:
O ye who believe! When ye deal with each other, in transactions involving future
obligations in a fixed period of time, reduce them to writing Let a scribe write

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down faithfully as between the parties: let not the scribe refuse to write: as Allah
Has taught him, so let him write. Let him who incurs the liability dictate, but let
him fear His Lord Allah, and not diminish aught of what he owes. If they party
liable is mentally deficient, or weak, or unable Himself to dictate, Let his
guardian dictate faithfully, and get two witnesses, out of your own men, and if
there are not two men, then a man and two women, such as ye choose, for
witnesses, so that if one of them errs, the other can remind her. The witnesses
should not refuse when they are called on (For evidence).Disdain not to reduce to
writing (your contract) for a future period, whether it be small or big: it is jester in
the sight of Allah, More suitable as evidence, and more convenient to prevent
doubts among yourselves but if it be a transaction which ye carry out on the spot
among yourselves, there is no blame on you if ye reduce it not to writing. But
take witness whenever ye make a commercial contract; and let neither scribe nor
witness suffer harm. If ye do (such harm), it would be wickedness in you. So fear
Allah. For it is good that teaches you. And Allah is well acquainted with all
things. If ye are on a journey, and cannot find a scribe, a pledge with possession
(may serve the purpose).And if one of you deposits a thing on trust with another,
let the trustee (faithfully) discharge his trust, and let him Fear his Lord conceal
not evidence; for whoever conceals it, - his heart is tainted with sin. And Allah
know the all that ye do. (Surah Al-Baqara, 282)
There is no god but He: That is the witness of Allah, His angels, and those endued
with knowledge, standing firm on justice. There is no god but Him, the Exalted in
Power, the Wise. (Surah Al-Imran, 18)
When Jesus found Unbelief on their part He said: "Who will be my helpers to (the
work of) Allah." Said the disciples: "We are Allah’s helpers: We believe in Allah,
and do thou bear witness that we are Muslims. (Surah Al-Imran, 52)
"Our Lord! We believe in what Thou hast revealed, and we follow the Messenger.
Then write us down among those who bear witness." (Surah Al-Imran, 53)
Say: "O People of the Book! Come to common terms as between us and you:
That we worship none but Allah. That we associate no partners with him; that we
erect not, from among ourselves, Lords and patrons other than Allah." If then
they turn back, say ye: "Bear witness that we (at least) are Muslims (bowing to
Allah’s Will). (Surah Al-Imran, 64)

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CASE LAWS:

1998 PCRLJ 2022. IFTIKHAR ALL V/S THE STATE (PESHAWAR DB).

S.302 (b), 324/353 PPC. However, sentence of death having been awarded to
accused by trial court without undertaking the exercise of Tazkiya-al-Shahood, was
altered to death as Tazir which too was an Islamic Punishment. DEATH SENTENCE
ALTERED.

PLD 1998 PESHAWAR 101. SAMBALI KHAN V/S THE STATE (DB).

S.299-K & 302 PPC. Liability of Qisas was to be established by two competent
(A'dil) witnesses and sentence of each as Qisas could not be imposed unless court
was satisfied having regard to requirements of Tazkiya-al-Shahood that the charge
of intentional murder was supported by credible testimony of two male adult
Muslim witnesses who were not only truthful witnesses, but also abstained from
major sins and were not inclined to indulge in minor sins. Probity of all eye-
witnesses in case was challenged and it was not established on record by means of
Tazkiya-al-Shahood that they were in fact A'dil witnesses. When the guilt of
intentional murder was established, but the evidence of the requisite standard for
convicting murder with the sentence of death as Qisas was not available, court had
to award sentence of death as Tazir. Deceased was earlier charged for murder of
father of accused when accused was about 7/8 years of age, but deceased was
acquitted and accused being smarting under grievance had committed murder of
deceased to avenge murder of his father. DEATH SENTENCE ALTERED TO
LIFE IMP.

NLR 1996 SD 709. HOME SECRETARY NWFP V/S MUHAMMAD AYAZ KHAN ETC .
(PESHAWAR DB). 5.304 PPC.

Procedure with regard to process of Tazkiya-al-Shahood:

A: There must be evidence of victim followed by atleast 2 witnesses.

B: In case of discrepancies on vital aspects between two witnesses both shall be

rejected.

C: Tazkiya Al-Shahood is a condition precedent to impose the sentence of Hadd.

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D: There should be one or more "Muzakki" (a person who testifies about the
truthfulness of the witnesses)

E: The "Muzakki" should be present when the witness gives evidence.

F: The "Muzakki" should also be questioned about antecedents, character and

dealings.

G: It is the responsibility of the court to satisfy itself about the credibility of a

witness and it can for that matter select open or secret modes of inquiry or both.

H: The court may frame a questionnaire on which the "Muzakki" should collect
information to supply to the court.

I: The court should also examine the "Muzakki" after he submit his report.

J: The Court should ask searching questions from the witness and cross-examine
him, to discover Facts which might show his credibility, piety or otherwise.

PLD 2002 PESHAWAR (DB) 65. GULBAR V/S THE STATE

S.302 & 304 PPC. Punishment of Qatl-I-Amd. Tazkia-al-Shuhood, once conducted

about a witness, does not effect before the expiration of six Islamic months. Where
no such evidence was forthcoming from the record to indicate that the eye-
witnesses were ever put to the test of Tazkia-al-Shahood during the period of six
months preceding their giving of evidence in the case, punishment of death as
Qisas inflicted upon the accused was not warranted in law and thus was not
maintained by the High Court in appeal.

1998 PCRLJ 383. MUHAMMAD ISRAR & OTHERS V/S THE STATE (FSC.DB).

5.7 R/W S.17 (3) OAP (EHO). Tazkiya-al-Shahood although not clearly defined in
the Explanation to 5.7, means the mode of inquiry adopted by the court to satisfy
itself as to the credibility of a witness. Expression "the mode" signifies that it is
one or more of the modes which are assumed to be well-known. Tazkiya-al-
Shahood, according to all accepted versions of the definition, can be done in either
or both of the two modes, one "open" and other "secret".

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(2) No proper Tazkiya-al-Shahood was done of the two eye-witnesses who even
otherwise themselves were the victims of the occurrence and could not be termed
as independent witnesses.

PIJ 2008 FSC 27. GHULAM NABI & 2 OTHERS V/S THE STATE

S.7 OAP (EHO) 1979. Violation of the requirements of Tazkiya-al-Shahood. Three

conditions have to be fulfilled for proof of theft liable to hadd, namely

(i) There shall be an inquiry by the trial court as to the credibility of at least two
male eye-witnesses,

(ii) The credibility of eye-witnesses shall be determined on the basis of the

truthfulness and abstinence from major sins,

(iii) The statement of the victim of the theft or the person authorized by him shall
be recorded before the statements of eye-witnesses are recorded.

Held: Victim of the theft was a bank which was a fictitious person/entity and was
not a natural person. Being a fictitious person it cannot adduce evidence of the
theft personally but only through its agent or representative—Contentions—
Firstly, evidence of bank employees in inadmissible under Sharia, secondly.
Fictitious legal entities or statutory/corporate bodies were not in existence in the
days of the Holy Prophet (PBUH) and the relationship of master and servant
existed only between natural persons. If such argument is accepted then all the
dacoits and robbers shall have free hand to commit dacoity and robbery of Banks
without any fear and in due course there shall not be any bank at all. Qanoon-e-
Shahadat Order 1984 does not recognize any such exception. According to
Qanoon-e-Shahadat all persons are competent to testify unless otherwise
specifically debarred. There is nothing therein imposing any legal disability on the
employee or servant of any one including a fictitious person to testify under Sharia
law in a matter concerning his employer. Additional Sessions Judge conducted the
inquiry was nothing but a mockery. To him PW-1. Who on certain occasions tells
lies is a credible as PW-2 who never tells lies. Again PW-3 who never offers
prayers at all is a good as PW-1 who offers prayers regularly. This superfluous and
summary inquiry was held was in clear violation of the requirements of Tazkiya-
al-Shahood U/S 7 of the Ordinance.

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Held: Prosecution had been fully able to establish its case of robbery against the
appellants against whom there was irrefutable evidence falling under Tazir laws
hereby the Bank was robbed. CONVICTION UNDER HADD SET-ASIDE BUT
ACCUSED CONVICTED U/S 394 PPC AS TAZIR.

2009 SCMR 356. SAJID SOHAIL V/S THE STATE

5.302(a) & 302(b) PPC. Punishment of Qatl-I-Amd. No doubt sentence of death as

Qisas cannot be inflicted unless requirement of Tazkiyah-al-Shuhood are satisfied
and proof of Qatl-I-Amd liable to Qisas as required by 5.304 PPC is available but
in the absence of requisite proof under 5.304 PPC Tazir punishment can be
inflicted on an accused, because every Muslim is a competent witness as he is
ordained to speak truth and his testimony cannot be discarded, so far as Tazir
punishment is concerned, if the same is otherwise believable. DEATH
SENTENCE CONVERTED INTO LIFE IMPRISONMENT.

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