WEEK 11

QUESTION 15

EVIDENCE AND PROCEDURE IN

SHARIAH COURT 1
(SHA 4010)
QUESTION

 Discuss the issue of syahadah al-nisa and shahadah al-hisbah in

the context of Islamic law of evidence as being explained by
jurist.You are also required to relate it to the current legal
practices/ provisions that been practiced in Malaysia and
Pakistan.
SYAHADAH AL-NISA
 Syahadah al-nisa is a testimony given by the female
 The testimony of two male witnesses or one male witness
together with 2 female witnesses.
 In certain cases however the testimony of two male witnesses
or in lieu thereof the testimony of a male witness together
with two female witnesses are needed. This is based on the
Qur’anic ayah:
“And get two witnesses , out of your 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. (Surah Al-Baqarah 2:282)
 The number of witnesses as stated before is needed to prove
cases involving property such as :
*Sale and purchase, waqaf, tenancies, gifts, musaqah, mudarabah,
*company law, bequest or property related crimes such as
unintentional killing or compensation for injuries inflicted.

Sahih al-Bukhari 2658

Narrated Abu Sa’id Al-Khudri:
The Prophet (s.a.w) said, isn’t the witness of a woman equal to
half of that of man? “The women said, “Yes.” He said, this is
because of the deficiency of a woman’s mind.”
 The mazahib accepts the testimony of a woman without support
from the testimony of a male in cases involving matters pertaining
to women’s affairs. Among such cases are:
I. birth of a baby
II. The crying of a baby (istihlal)
III. Suckling
IV. Genital defects
V. Determining virginity
VI. Determining the iddah period

 The only dispute among the ulama with regards to the

above matters is whether the testimony of a just a single
woman is sufficient or should the testimony of two women be
required
SYAHADAH AL-HISBAH
• Originally referred to a person giving evidence without
being asked to do so

• When a person giving shahadah comes forward giving the

testimony on matters in which there is no claim that has
been made yet, without being asked to do so

 He gives the evidence for the sake of Allah.

 The one who gives the shahadah may become the witness
as well as the claimant
 Surah Ali Imran (3): 104; 110

 Person or organization or department that carries duties

within the scope of amar ma’ruf and nahi mungkar. This is
referred to the special department dealing with enforcing
the laws.
 Policemen,
 Enforcement officers,
 Investigating Officers,
• Basically everyone to be responsible.
• But when being assigned in a specific manner, then it
becomes fardu ‘ain on him in dealing with job.
Cases where SH is admissible
• cases relating to the right of ‫ هللا‬i.e drinking liquor,
theft, robbery
• zakat
• free a slave
• will/waqf
• marriage
• other cases involving the interest of the society in
general
 Cases
 Fathillah v Muhammad Ghafar
 Siti Zainab v Muhammad Ishak
 Rokiah v Maidin
 Rosnah v Shafie
 Sharifah Sepoyah V Wan Alwi
 MALAYSIA PAKISTAN

SYAHADAH
AL-NISA

SYAHADAH
AL- HISBAH
 COMPETENCE AND NUMBER
OF WITNESSES (ARTICLE 17)
(1) The (b) in all other
competence of a matters, the Court
person to testify, a) In matters may accept, or act
and the number of (2) Unless pertaining to on:
witnesses required otherwise provided financial or future - testimony of one
in any case shall be in any law relating obligations: man or one woman
determined in to the enforcement - Shall be attested or such other
accordance with of Hudood or any by two men, or one evidence as the
the injunctions of other special law, man and two
Islam as laid down women circumstances of
in the Holy Quran the case may
and Sunnah. warrant.
S.86(4) Evidence of a female person is sufficient to prove any fact which is usually
seen or within the knowledge of a female.

ILLUSTRATION

Evidence of a female who breast-fed a child or that of a midwife in matters relating to

menstruation, birth and breast feeding.

S 86(5) Except as otherwise provided in this section, evidence shall be given by male
witnesses or by one male and two female witnesses.