SP5304 ISLAMIC LAW OF EVIDENCE Semester 2 - 2010

QARINAH(CIRSUMSTANTIAL EVIDENCE)

Student's Name: Dk Hjh. Hana Molina binti Pg. Hj. Mohammad

Registration No. :09d0006

Lecturer's Name: Dr. Abdurrahman Raden Aji Haqiqi

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TABLE OF CONTENTS

CHAPTER TOPIC PAGE1 Introduction 3-4

2 Definition of Qarinah 4-5

3 Position of Qarinah as a tool of proof 5-6

4 Authorities of Qarinah: Al-Qur'an, Al-Sunnah and the Practice of the Companions of the Prophet S.A.W.

6-8

5 The Position of Qarinah in Hudud and Qisas cases 8-10

6 The Roles of Qarinah and its Application

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7 Syari’ah Court Case in Malaysia

11-13

8 Syari’ah Court Cases in Brunei 13-14

9 Conclusion 14

10 Bibliography 15

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INTRODUCTION

“Islamic Law is based on wisdom and achieving people's welfare in this life and the afterlife.

Shariah is all about justice, mercy, wisdom, and good. Thus, any ruling that replaces justice with

injustice, mercy with its opposite, common good with mischief, or wisdom with nonsense, is a

ruling that does not belong to the Shariah, even if it is claimed to be so according to some

interpretations.”1 Both the Al-Qur'an and the Sunnah of the Prophet (pbuh) repeatedly demand

justice and condemn injustice. There are many verses in the Al-Qur'an which attest to the

importance of justice in legal and other matters.

In legal proceedings, justice is all important:

In Surah Al-Maidah (5) verse 8:

“O you who have believed, stand out firmly for Allah, as witnesses in justice, and do not let the

hatred of the others prevent you from being just. Be just; that is nearer to righteousness. And fear

Allah; indeed, for Allah is well-Acquainted with what you do.”

In Islam, evidence must be given without bias, even if it is against the interests of the person

testifying or against the interests of his family and friends:

In Surah An-Nisa (4) verse 135:

"O you who have believed, be persistently standing firm for justice, as witnesses for Allah, even if it

be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of

both. So follow not [personal] inclination, lest you not be just. And if you distort [your testimony]

or refuse [to give it], then indeed Allah is well acquainted with what you do"

In relation to the principle of justice, the Criminal Law of Islam, has laid great stress on the law of

evidence in any trial or legal adjudication to prove the facts relevant for the judgement of the court

because a conviction can only be obtained if the most stringent evidential requirements are met.

1 Shamsuddin Ibn al-Qayyim, I`lam Al-Muwaqi`een, ed. Taha Abdul Rauf Saad, Beirut: Dar Al-Jeel, 1973

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According to Islamic Law, the crimes and rights with regard to their proof have been classified in 2

categories:

i. Hudud and Qisas

ii. Ta'zir and rights

These crimes or rights are generally proved by the following ways namely Iqrar (Admission),

Shahadah (Testimony), Qarinah (Circumstantial Evidence), Rayu al-Khabir (Evidence by Expert),

Al-Yamin (Oath) and Ibnu al-Qadi (Knowledge of the Qazi).

The aim of this assignment is to raise issues in relation to qarinah as one of the ways of proving in

Islamic Law by defining qarinah and subsequently discussion in relation to the sources which

accept and reject its usage in Islamic Law as well as explaining the position of qarinah in Hudud

and Qisas cases. The current cases in the Syariah Courts of Malaysia and Brunei will also be

discussed to explain the role of qarinah and its application as a way of proving in Islamic Laws.

DEFINITION OF QARINAH (CIRCUMSTANTIAL EVIDENCE)

Literally, qarinah which comes from the Arabic word al-muqaranah means connection, relation,

association, linkage or indication.2 Based on the Arabic word, qarinah is divided into two types:

a) Qarinah maqaliah / lafziyyah – based on words (metaphor)

Example : “I have seen a flower writing”

Meaning : “A flower” means “someone who is a pretty woman as a flower is writing”

b) Qarinah haliyyah / ma’nawiyyah – based on the surrounding and circumstances

Example : A man who says to his friend about to leave for voyage, “May Allah protect you"

Meaning : The words in this situation are spoken in an atmosphere where speaker expresses his

wish that he could accompany his friend on the voyage.

Based on the abovesaid examples, it is therefore clear that qarinah is something which shows a

certain meaning, whether in the form of words, surroundings, circumstances and etc.

Example: A man comes out of a house with fear holding a bloodstained knife in hand, upon

investigation, there was a man inside the house with his throat slit. Based on circumstances, there is

no doubt that the man who left the house was the murderer even though no witnesses to testify they

saw the man committed the crime!

2 Ibn Manzur, Abu al-Fadl Jamaludin Muhammad B Mukram, Lisan al-Arab, hlm. 336 ; Prof Anwarullah (1999) Principles of Evidence In Islam, hlm. 107 ; Siti Zalikhah Mohd Nor, et al (2006) – Al Syariah Undang-Undang Keterangan Islam, hlm 142.

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According to jurists (ulama), qarinah means every clear indication which shows something hidden.3

In terms of law, it is the logical inference drawn from words, circumstances, acts or omissions

which proves the existence or non-existence of another thing. It is also called presumption which

means a conclusion or inference as to truth of some fact in question.

According to the definition in the Syariah Courts Evidence Order 20014 Brunei Darussalam,

qarinah is fact connected with the other in any of the ways referred to in Hukum Syara’ or in the

provisions of this Order” With this, the definition of qarinah is wide as it include any facts in any

forms which can be accepted as one of the evidence to prove an offence.5

POSITION OF QARINAH AS A TOOL OF PROOF

The meaning of Qarinah in technical sense according to 'Abdul Karim Zaidan is indeed wide and

all embracing as it covers anything which may be used as proof or evidence to establish the

existence or non-existence of a thing.6 This means that Qarinah may establish the existence or

non-existence of a thing. The term 'thing’ that can be used as proof must be given a general

meaning so that it would include things that could be seen, felt, heard, touched and others.

Qarinah can be divided into 3 types based on the level of acceptance:

a) Qarinah which is Strong and Conclusive - judge will have to admit it

b) Qarinah which is Weak - rejected

c) Qarinah which is Doubtful - determined by the court

Even though qarinah generally can be accepted by the court by its definition, however, not all

qarinah can be easily accepted as sufficient evidence. Only iqrar and shahadah can be accepted as

evidence in hudud and qisas cases because both of the evidence (baiyinah) are considered as to

reach the degree of certainity (yaqin). The punishment of hudud and qisas need to be withdrawn if

there is a slight doubt existing in the evidence brought forward.

According to jurists, qarinah is ammarah which must reach status of ‘yaqin’ that is reliable and free

from any reasonable doubt. As such, to be acceptable, qarinah should attain the standard of 'yaqin'

to be used as one of the means of proof. 7 As stated in the Majallah al-Ahkam al-Adliyyah, a

codified law of the Ottoman Empire of Turkey, has accomodated presumption in section 1741: “A

3 Wahbah al-Zuhailiy (1989) Al-Fiqh Islami wa Adillatuhu, Jilid 6, hlm. 644 ; Siti Zalikhah Mohd Nor, et al (2006) – Al Syariah Undang-Undang Keterangan Islam, hlm 142.

4 section 7 - 19, Chapter II of Syariah Courts Evidence Order 2001.5 Wahbah al-Zuhailiy (1989), ibid.6 'Abdul Karim Zaidan, 2000. Nizam Al-Qada Fi Al-Shari'ah Al-Islamiah. Beirut Lebanon: Resalah Publisher. p.1857 Dr. Mahmud Saedon A. Othman (1990), Undang-Undang Keterangan Islam, hlm. 137.

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strong presumption proof is an inference which attains the degree of positive knowledge”

What is meant by yaqin here is that qarinah should reach the degree of strong suspicion (al-zan al-

ghalib) and not yaqin qat’i. Qarinah which is strong or yaqin does not necessarily mean a yaqin

which is beyond any reasonable doubt because such certainty can only be attained through iqrar or

syahadah evidence only which is subject to necessary conditions. However, qarinah as a means of

proof needs to reach a degree of strong suspicion (al-zan al-ghalib) as certainty cannot be displaced

by doubt and this is important to proof whether a person is guilty of an offence.

The jurists rely only on strong qarinah and accept it as sufficient evidence for the relevant fact.8 The

qarinah must be of strong nature because presumptive evidence usually carries with it an element of

doubt. The parties are allowed to submit as much evidence as they like but it is up to court to weigh

the evidence presented by both parties to accept or reject it totally or partially. The court shall

accept only such qarinah which is strong and conclusive.

AUTHORITIES OF QARINAH: AL-QUR'AN, AL-SUNNAH AND THE PRACTICE OF THE COMPANIONS OF THE PROPHET S.A.W.

The majority of the 'ulama (jurists) accepted qarinah as one of means of proof based on the Al-

Qur’an, Al-Sunnah and the Practices of the Companions. They have accepted qarinah as one of the

means of proof in judicial proceedings while there are also other 'ulama who have rejected qarinah.

The majorities who have accepted qarinah are those from the four main schools of law (the four

mazhabs). Their proof for admitting qarinah as a type of evidence is based on the Al-Qur’an, Al-

Sunnah and the Practices of the Companions. The authorities that relate with qarinah in convicting

a crime and establishing a claim is as followed:

1. Authorities from the Al-Qur’an

a) Allah SWT says in Surah Yusuf (12) Verse 18:

"And they came with false blood on his (Yusuf's) shirt. He, Yaa'qub, said, when he saw that it

[the shirt] was undamaged and realised that they were lying: ‘Nay, but your minds have made

up a tale (that may have pass) with you. For me, patience is most fitting:Against that which ye

assert, it is Allah (alone) whose help can be sought"

According to al-Qurtubi in his commentary, the jurists have employed this ayat as justification for

using "signs which points to the existence of something' in solving fiqh problems, such as usimg

8 Al-Bahai, Ahmad Abdul Munim, Min Turuq al-Ithbat fi al-Shariah wa al-Qanun, page 73.

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circumstantial evidence of qasamah and others. In this concept, the ulama are unanimous in their

view that Prophet Yaa'qub alaihi salam (a.s.) have treated the blood stained shirt of Yusuf a.s. as

evidence that Yusuf a.s. is still alive as the shirt though blood stained is still not torn a sit should be

if Yusuf alaihi a.s.really attacked by wolves as claimed by his brothers confidently. Rather to this

ayat, in one narration it was said that the Prophet Ya'qub a.s. had asked Yusuf's brothers "When did

the wolves became so clever that they could eat Yusuf a.s. without tearing open his shirt?"9

The witnesses as Allah said in Yusuf a.s. story is clearly showed that the Prophet Yaa'qub a.s. had

resorted to qarinah as a means of proving that the allegations by the brothers of Yusuf a.s. are false.

In this case, the fact the blood stained shirt was not torn clearly raises a doubt on the allegations by

Yusuf’s brothers.

b) In other verses (ayat) in the Al-Qur'an, showed that qarinah is resorted to and applicable in

establishing a claim and convicting a crime. Allah SWT says in Surah Yusuf (12) Verse 25-

28:

“At last Yusuf and she raced towards the door one behind the other and she tore his shirt (pulled it)

from behind and then met her husband at the door. Seeing him, she cried out :What punishment

does one deserve who show evil intentions to your wife? What else than that he should be put in

prison or tortured with painful torment.”At this a witness of her own folk testified ‘if his shirt is torn

from front, then she speaks truth and he is of the liars. And if his shirt is torn from behind then she

tells a lie and he is of the truthful.’

The fact that Yusuf’s shirt was torn from the back shows that it is a qarinah (circumstantial

evidence) leading to the conclusion that Yusuf SAW did not try to molest Zulaikhah, wife of the

nobleman. So, the nobleman can decide who was in the right side.

2. Authorities from the Al-Sunnah

a) It has been related that in the battle of Badar, the two sons of Afra claimed that they have

killed Abu Jahal. Rasullulah SAW said to them: “Have you cleaned your swords?” They said

“No.” Rasullulah SAW said: “Show me your swords”.When Rasullulah SAW saw the

swords being bloodstained, he said “You have killed him.”10 According to this hadith, it is

clearly shown that the cirsumstantial evidence was applied before Rasullulah SAW makes a

decision.

9 'Abdul Karim Zaidan, 1993. Prinsip-prinsip Pendakwaan dan Pembuktian Dalam Sistem Kehakiman Islam. Selangor: Penerbitan Hizbi p. 154.

10 Ahmad bin Hanbal (1992) Al-Musnad Jilid 3, hlm. 212 ; Zaini Nasohah, Al-Qarinah ; Siti Zalikhah Mohd Nor, et al (2006) – Al Syariah Undang-Undang Keterangan Islam, hlm 145.

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b) Narrated Zaid bin Khalid Al-Juhani: A bedouin went to the Rasulullah SAW and asked him

about picking up a lost thing. Rasulullah SAW said, "Make public announcement about it for

one year. Remember the description of its container and the string with which it is tied; and

if somebody comes and claims it and describes it correctly, (give it to him); otherwise,

utilize it."11

c) Abu Hurairah (Allah be pleased with him) reported Allah's Messenger Rasulullah SAW as

having said: "A woman without a husband (or divorced or a widow) must not be married

until she is consulted, and a virgin must not be married until her permission is sought. They

asked Rasulullah SAW: How her (virgin's) consent can be solicited? Rasulullah SAW said:

That she keeps silence. 12

3. The Practice of the Companions of the Prophet S.A.W.

a) Caliph Umar said “Rejam (stoning to death-hudud penalty) is imposed on the commission of

zina by a married man and woman when it is proved by confession, testimony or there is

pregnancy (in case of an unmarried woman) and the woman does not claim coercion based

on Qarinah.

b) It has been related on the authority of Saib bin Yazid who said: “Umar smelled the odour of

wine from a person. He enquired about him and was told that he is intoxicated.” So Caliph

Umar imposed hudud penalty on him.

c) During the time of Caliph Umar, a woman falsely accused a man of rape. In order to have

him convicted, she poured egg white on her dress and between her legs, hoping to give an

impression that the substance was a male semen. The Caliph, in deciding the matter, called

upon a female to exmaine the alleged victim and received an opinion that the substance

found was indeed sperm. However, upon consulting Sayyidina Ali, who poured boiling

water on the dress, recealed that the substance (solidified due to heat) was in fact egg white!

The man was acquitted.13

11 Volume 3, Book 42, Number 609: The Hadith Of Muhammed, By Sahih Bukhari: Lost Things Found by Another Person (Luqaata)

12 (Translation of Sahih Muslim, The Book of Marriage (Kitab Al-Nikah), Book 008, Number 3303)13 In essence, the above authorities illustrate that:

(1) expert evidence can be supported by observation and analysis of circumstantial evidence (qarinah), as in Yusuf's case,(2) physical examination, as well as laboratory test are allowed

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THE POSITION OF QARINAH IN HUDUD AND QISAS CASES

There are some 'ulama (jurists) who have rejected qarinah stating that qarinah as a means of proof

is not fixed and not a reliable form of evidence. The Hanafis and Shafi'is and with one excepetion

Hanbalis reject the use of presumption in hudud and qisas, allowing only witnesses and confession

as evidence. According to Ahmad Abdul Muniem al-Bahai, these jurists have relied on this hadith

Rasulullah SAW related by Ibn Majah: “Were I to stone (rejam) anyone without evidence, I would

have stoned so and so (fulanah), for her speech, appearance and cohabitation are such which raise

suspicion”14

This reinforces the rule that doubt nullifies hudd. Since a presumption is always doubtful, it cannot

be the basis for judgement in hudud which are removed by doubts. This is the preferred view among

the jurists. Hence Rasullulah SAW refused to implement hadd punishment on the person based on

qarinah. However, there are jurists who are of the view that qarinah is permitted widely without

restrictions in all cases including hudud and qisas cases.

1. Hudud Cases

There are also some jurists who are of the view that qarinah is exempted in hudud cases

because hudud law is solely Allah's rights. Jurists however concur that hudud cases such as

zina, theft, drinking alcohol and qazaf can be proven by using iqrar and shahadah. In

relation to qarinah as means of proving hudud cases, the jurists have different views:

a) Zina: Pregnancy of an unmarried woman

According to Mazhab Hanafi, Shafi’i & Hanbali, it is not sufficient proof for hadd penalty

and at the most it is liable to ta’zir provided such woman was not coerced (forced).

Pregnancy can occur as a result of wati’ syubhah15 (doubtful sex) or because she was raped.

According to mazhab Maliki, it is sufficient proof for hadd penalty provided there is no sign

of coercion on her body and she is a local and not stranger.16

b) Theft: Stolen property in possession of the accused who denied stealing the

property

The jurists (ulama) are unanimous that theft can be proved through iqrar or bayyinah.

14 Dr. Mahmud Saedon A. Othman (1990), ibid., hlm. 144.15 Wati’ syubhah atau persetubuhan yang meragukan ialah persetubuhan yang berlaku antara seorang lelaki dengan

seorang perempuan atas dasar keyakinan bahawa perkahwinan mereka itu sah sedangkan pada hakikatnya ianya tidak sah atau dasar keyakinan bahawa perempuan itu adalah isterinya sedangkan pada hakikatnya tidak.

16 Jika perempuan itu tidak bermukim, iaitu ia baru datang secara mengejut, boleh diterima kenyataannya kerana didapati syubhah (keraguan)dan kehamilan perempuan itu tidak boleh dijadikan bukti yang kukuh untuk mensabitkan hukuman hudud keatasnya.

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According to Mazhab Hanbali, hadd punishment for theft can be imposed in abscence of

satisfactory explanation. According to Ibn Qayyim, hadd punishment can be imposed

because such a fact is a stronger qarinah than confession or testimony (iqrar). However,

according to some ulama, hadd punishment cannot be imposed because accused denials

raise uncertainties.

c) Drinking Alcohol: odour of alcohol in his mouth or vomit -‘can the smell of liquor

from the accused’s mouth be used as evidence against him/ what if liquor was found

in his vomit?’

According to Mazhab Hanafi & Shafi’i, no hadd punishment imposed because mere odour

or vomit is not a definite and strong presumption. The accused person may have been forced

to drink alcohol or drunk it by mistake. However according to Mazhab Maliki & Hanbali,

hadd punishment imposed is based on zahir qarinah.

2. Qisas Cases

According to the majority of the jurists including the school of mazhab Hanafi, qarinah is not

accepted as one of the ways to prove qisas cases which does not involve a person's life, whereas

qarinah is accepted for qisas cases which involves a person's life.

The general rule in judgement of criminal cases can be proven through iqrar or shahadah. The

issue here is whether qarinah could also be used as one of the means of proving murder.

According to fiqh jurists of the four schools (four mazhabs), they are of the view that a murder

can be proven by way of qarinah, but qarinah however may be lauth (circumstantial evidence),

which will entitle the family of the victim to demand the process of qasamah.17 Based on this,

the majority of jurists require for the relatives of the deceased to take fifty oaths stating that the

accused has murdered the victim.

Eventhough there is a difference in opinion whether qisas in a a murder or hurt case is proved

by presumption (circumstantial evidence) or not, the jurists, however, concur that ta'zir

punishment can be given in a murder or hurt case on circumstantial evidence.18

Some jurists opine that if circumstantial evidence in a murder case reaches to the degree of

17 Dr. Mat Saad Abd. Rahman, 2000. "Acara Keterangan Dalam Pembuktian Ke Pembunuhan Dan Kecederaan". Tinjaun Kepada Perundangan Islam, Kuala Lumpur: Institut Kefahaman Islam Malaysia (IKIM) p. 397

18 Prof. Dr. Anwarullah (1999), Principles of Evidence In Islam, hlm. 113 ; Siti Zalikhah Mohd Nor, et al, ibid, hlm 154

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certainty, the accused in such case may be given the punishment of death as ta'zir. Mazhab

Hanafi, Maliki and Hanbali jurists opine that the punishment of death qisas can aso be given to

the accused in a murder case on circumstantial evidence if it reaches to the degree of certainty.

According to Ibn Al-Qayyim, qarinah is one of the means of proof in murder cases and in qisas

as accepted in hudud cases and others.19

THE ROLES OF QARINAH AND ITS APPILCATION

Qarinah should not be accepted carelessly as its acceptance depends on every case according to its

weakness & strengths. Qarinah is important because it could be used to strengthen other forms of

evidence such as shahadah and iqrar and could also be used to test the validity of testimonies

including shahadah, yamin and iqrar. Qarinah is beneficial and important to a judge so that the

punishment he imposed is correct.

Problems related to the conditions of a witness. Evidence from a person who is not competent to

give testimony (kesaksian) can be accepted by the court. For example:

1. Evidence of a wife for his husband’s interest or her son for his father cannot be admissible if

it is a testimony, but it can be admitted by the court only to the stage of qarinah.

2. A child who is not competent as a shahid can give evidence only to the stage of qarinah.

3. To test how far the evidence which includes shahadah, yamin and iqrar can be accepted and

whether it is valid. Mustafa Batcha lwn Habeeba (1990) 7 JH 255 - Background,

condition and circumstances in relation to the case in which iqrar had been given.

4. Beneficial and important to a judge so that the punishment he passed is correct and

indefinite.

Sometimes a crime cannot be proved through the ways which had been agreed by the jurists

such as iqrar and shahadah. For example, a woman have been raped by a male stranger in

the dark. The accused would obviously escape from any punishment in which there are no

evidence of confession from the accused or any witnesses. With this, to upright justice for

the victim and the whole society, qarinah is required to prove the offence. DNA tests is a

technique which is always used in a civil court and accepted to be use by the syariah court as

well to prove the offence.20

19 Ahmad Abdul Mun’im al-Baha’iy (1965), Min Turuq al-Ithbat fi al-Shariah wa fi al-Qanun, hlm. 97-98 ; Siti Zalikhah Mohd Nor, et al, ibid, hlm. 154.

20 Dr. Nik Rahim Nik Wajis (2002), ibid., hlm. 23.

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SYARI’AH COURT CASE IN MALAYSIA

MUSTAFA BATCHA v HABEEBA (1990) 7 JH 255

Case Background: This is a Negeri Sembilan matrimonial case whereby the husband had allegedly

divorced his wife by repeating the talaq 3 times - “I divorce you” to his wife. When the matter went

to court, the husband blamed his action on sorcery (black magic). He claimed that he had no

intention to divorce his wife but he was under the influence of a magic spell. The trial court

disbelieved his defence and refused to hear the evidence on sorcery. The Kadi Court held that a

divorce by three talaq had been effected (according to Mazhab Shafi’i). The Learned Kadi did not

call any witnesses & did not investigate the husband’s allegation that when he pronounced the

divorce he was not in his proper senses and that he was induced to do so by black magic! The

husband appealed. It was held on appeal, that although sorcery is condemned by Islam, it was

mentioned in the Al-Qur'an in Surah al-Baqarah (2:102).

The Syariah Appeal Court ordered the case to be retried before another Kadi because of the

following reasons:

1. Witnesses had not been called

2. The court had not considered whether the allegation of the husband that he was under the

influence of black magic was true or not

3. No expert evidence was called

4. Mere statement (iqrar) of the husband could not be accepted as it was not conclusive.

5. The circumstances and conditions of making the statement were not considered.

6. Even though iqrar was made in court but the background, condition and circumstances

where the crime or the case occurred should be analysed and considered by the court.

It is the Practice of the Companions that the punishment against an accused can be dropped because

of certain reasons after the facts have been reviewed as shown in the following case:

During the famine season, a married woman complained and gave an iqrar that she was pregnant

as a result of zina and requested that Caliph Umar to impose the punishment of rejam (stoning)

against her. Saiyidina Ali reviewed the case and the reasons that led the woman to commit zina

before she was sentenced. It was clear to him that the woman was raped and the zina occured not

because of her consent but because she had to save herself from starvation. The incident occurred

when the woman was too thirsty, she found a man who has milk, she then asked a little milk from

the man. However, the request was turned down three times, the man agreed to give her the milk

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with the condition that she surrender herself. The man then raped her. After hearing the evidence so

Saiyidina Ali said: "Allahu Akbar! Whoever in the state of being forced to not want it nor

extravagant there is no sin "(Surah Al-Baqarah: 173).

Caliph Umar liberate the woman based on the views of Saiyidina Ali on the grounds of emergency.

(Ibn Qayyim al-Jauziah, al-Turuq al-Hukmiyyah, Matba'ah al-Madani. Kahirah, case: 79)

In this case, Saiyidina Ali was defending this woman that although the woman gave an iqrar in

front of Caliph Umar, but Sayyidina Ali acting as protector, felt iqrar is not received before it was

reasonably assured that there was no syubhah. Saiyidina Ali has proved that even though this

woman gave an iqrar that she committed zina but the situation in which zina was committed is

considered necessary, in order to save the life of the woman dying from thirst. This fact has been

highlighted, analyzed and provided comments by the judge. According to Saiyidina Ali, the reasons

of the law based on the concept of emergency has successfully convince the judge, Caliph Umar

who found the woman not guilty even though iqrar had been done in court. This case shows that an

iqrar can be received after it has been ascertained that there was no syubhah and that the

background, condition and circumstances of the case must be examined and studied by the court.

SYARI’AH COURT CASES IN BRUNEI

CRIMINAL PROSECUTOR v DK SORYANI BTE PG BESAR and MAHHAMAD JIN BIN

ROSETA

Both the defendants were charged for the offence of illicit intercourse in December 1993 under

section 178(4) Religious Council and Kadis Courts Chapter 77, 1984 Amendment. The punishment

were imposed on both the defendants based on the two following main evidencs:

1. Confession from the two defendants (pleaded guilty).

2. The female defendant gave birth to a child while both the defendants were not husband and

wife or not yet married at the relevant time.

Both the defendants were fined to $800.00 or imprisonment of 30 days.

CRIMINAL PROSECUTOR v ASARWIH BIN ABDULLAH @ SIANDOK and YUSLIZA BTE

YUSOF

Both the defendants were charged for the offence of illicit intercourse in December 1997 under

section 178(4) Religious Council and Kadis Courts Chapter 77, 1984 Amendment. The female

defendants gave birth to a child in September 1998 while both the defendants were not husband and

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wife or not yet married at the relevant time. They both pleaded guilty. The male defendant was fined

$200.00 or imprisonment for about 15 days and the female defendant was also fined $200.00 or

imprisonment for about 10 days.

In relation to both of the cases mentioned above, Dr. Nik Rahim Nik Wajis in his articles

"Pembuktian Kes Melalui Qarinah: Perbandingan Antara Undang-Undang Islam dan Undang-

Undang Syariah Negara Brunei Darussalam" gave a comment that eventhough the punishment was

made based on the iqrar of the accused, however the accused most probably would not plead guilty

without a clear qarinah such as a child born out of wed-lock according to Syarak.

CONCLUSION

Qarinah plays an important role in the process of proving and giving evidence in Islamic Law.

Even though some jurists reject it, qarinah have been accepted by the majority of jurists especially

the four jurists (mazhabs) as one of the ways of proof. The contradicting views amongst the jurists

are not the the main question but the differences in interpreting the Prophet S.A.W's hadith.

However, for the majority of jurists who accepts qarinah, only the strong qarinah is accepted so

that there will be no question with regards to qarinah which is weak and doubtful as one of the

ways of proof. A reasonable Zann is a fact which is certain and is not doubtful to the judge (qadi)

who relies on a certain fact for a certain case and the certain fact must be suitable with the existent

circumstances surrounding it.

In this modern world and the increasing complexity of criminal acts, the role of qarinah cannot be

ignored or rejected solely. The evidence have to be considered eventhough it does not fulfil the

status of yaqin baiyinnah which binds the court. The important thing is that the judge should

consider the status of qarinah as a means of proof, if it is strong and conclusive, it must be accepted

but if it is weak, it must be rejected and if it is doubtful, the status must be determined.

Nevertheless, qarinah is important, as it can be used as to suppport, strengthen or test the validity of

other baiyyinah such as iqrar and shahadah. It shall be accepted if it can assist to update the Islamic

Laws of Evidence so that it can overcome crimes which are spreading and also to upright justice as

well as to strive for human rights.

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BIBLIOGRAPHY

1. Jamila Hussain (2004) - Islam its Law and Society

2. Prof. Dr. Anwarullah (2004) - Is1.lamic Law of Evidence

3. Faridah binti Ab Ghani (March 2004) - Qarinah: Its Functions in Establishing a Claim and Convicting a Crime

4. Haji Sa’id Haji Ibrahim (1996) – Qanun Jinayah Syar’iah & Sistem Kehakiman Dalam Perundangan Islam Berdasarkan Qur’an dan Hadith

5. Prof. Dr. Mahmud Saedon A.Othman (1990) – Undang-Undang Keterangan Islam

6. Dr. Nik Rahim Nik Wajis (2002), Jurnal Undang-Undang Syariah Brunei Darussalam, Pembuktian Kes Melalui Qarinah Perbandingan Di Antara Undang-Undang Islam dan Undang-Undang Syariah Negara Brunei Darussalam.

7. 'Abdul Karim Zaidan (1993) - Prinsip-prinsip Pendakwaan dan Pembuktian Dalam Sistem Kehakiman Islam. Selangor: Penerbitan Hizbi

8. 'Abdul Karim Zaidan (2000) - Nizam Al-Qada Fi Al-Shari'ah Al-Islamiah. Beirut Lebanon: Resalah Publisher

9. Siti Zalikhah Mohd Nor, et al (2006) – Al Syariah Undang-Undang Keterangan Islam

10. Syariah Courts Evidence Order, 2001 (S 63)

11. Religious Council and Kadis Court Act, Chapter 77

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