CONSTITUTION OF THE QUR’AN AND

ITS IMPLEMENTATION BY THE HOLY PROPHET OF ISLAM

Muhammad Yusuf Guraya

 (1) Fundamental Constitutional Principles in the Qur’an

Justice—A Divine Ordinance. Administration of justice has been given supreme importance in the Qur’ān. The Muslims have authoritatively been enjoined to regulate their affairs with justice: “Surely Allah enjoins justice (‘ad!) and beneficence (ihsan).”[1] The term ‘adl ( justice) or returning good for good and ihsān (beneficence) or goodness proper are basic judicial terms which are comprehended within the Islamic concept of justice. The lowest form of justice is ‘adl and the highest is ihsān.

Source of Justice. The main and prime source of justice in Islam is the Qur’an. It is its origin and fountainhead :

“Surely We have revealed the Book to thee with truth that thou mayest judge between people by means of what Allah has taught thee.”[2]

“So judge between them by what Allah has revealed, and follow not their low desires (turning away) from the truth that has come to thee.”[3]

The Qur’an has superseded the pre-Quranic sources and has rendered suprefluous those which do not conform to its funda­mental principles : “Is it, then, the judgment of ignorance, that they desire ?”[4] Here “ignorance” (al-jāhilīyyahyyah) means the non-conformity with the Quranic teachings. It has also been held as an antonym of the Qur’ān and has been discarded as a source of justice. No judgment shall be made against “what Allah has revealed” is a fundamental provision laid down in the Qur’ān ; “And whoever judges not by what Allah has revealed, those are the disbelievers,”[5] “. . . the wrongdoers,”[6] “... the trans- gressors.”[7] Under this Divine constitutional law the Holy Prophet made the following regulation :

“Any house or land, which was divided in the jāhilī yyah, shall remain divided according to the division of the jāhilīyyah. Any house or land, which was not divided till the advent of Islam, shall be divided according to the Islamic rules of division,”[8]

Authority of the Holy Prophet. The Muslims were enjoined to seek justice from Allah in all their disputes. This injunction was revealed as early as the middle-Mecca period. Reference to Allah for seeking justice was meant to accept His Messenger as judge for adjudication of their disputes :

“And in whatever you differ, the judgment thereof is with Allah. That is Allah, my Lord ; on Him I rely, and to Him I turn.”[9]

The judicial and executive authority of the Holy Prophet has particularly been mentioned in the chapters revealed at Medina. The legitimacy of an Islamic State rests on the following fundamental injunctions of the Qur’ān :[10]

“O you who believe ! obey Allah and obey the Messenger and those in authority from among you ; then if you quarrel about anything, refer it to Allah and the Messenger, if you believe in Allah and the Last Day. This is best and more suitable to (achieve) the end.”[11]

Here the Holy Prophet has been invested with the supreme executive (atī’u al-Rasūl) and judicial(fa ruddūhu ila Allah Waal-Rasūl) authority The statement “and those in authority from among you” calls for obedience to Muslim authorities, representatives of the people, and a properly constituted Islamic govern­ment. The supreme executive and judicial authority of the Holy Prophet and obedience to his functionaries superseded all pre-Islamic authorities except where the Quranic revelation or the authentic saying of the Prophet provides otherwise.

Submission to the judgments and decisions of the Holy Prophet is a Divine obligation and the Muslims have no choice except to follow him in totality :

“And it behoves not a believing man or a believing woman, when Allah and His Messenger have decided an affair, to exercise a choice in their matter. And whoever disobeys Allah and His Messenger, he surely strays off to manifest error.”[12]

In another Divine ordinance the faith and reference of disputes by the believers to .the Holy Prophet have been equated. Any deviation from this course has been treated as disbelief :

“But no, by thy Lord ! they believe not until they make thee a judge of what is in dispute between them, then find not any straitness in their heart as to that which thou decidest and sub­mit with full submission.”[13]

Here reference of their disputes to the Holy Prophet and sub-mission to his judgments does not simply signify the outward sub-mission of the believers. They are required to submit to his judg­ments wholeheartedly and they must not find any straitness in their hearts, “lā yajīdū fa anfusihim harajan.”

Duty of the Holy Prophet. Investing the Holy Prophet with the supreme executive and judicial constitutional authority, the Qur’ān has also laid down his duty as the judicial head of the Islamic State. His chief function is to administer justice in accordance with the Divine Revelation. He shall neither suppress anything from nor interpolate anything into the contents of the Constitution of the Holy Qur’ān :

“Say : It is not for me to change it of my own accord. I follow naught but what is revealed to me. Indeed I fear, if I disobey my Lord, the chastisement of a grievous day.”[14]

This ordinance lays down in unambiguous terms the duties of the Holy Prophet, the Sovereign of the Islamic State. The sole source of his authority for his executive, legal and judicial func­tions is the Qur’ān. A vivid distinction has been made between the person of the Holy Prophet and his status as a divinely-inspired servant of God. Such clear distinction between the per-son of the sovereign and his constitutional position does not exist even in the most modern and progressive constitutions of the world: “Say: I am only a mortal like you, it is revealed to me that your God is one God.”[15] This constitutional provision has further been elaborated in the following text:

‘‘It is not proper for a mortal that Allah should give him the Book and the judgment and the prophethood, then he should say to the people: Be my servants besides Allah’s ; but (he would say): Be worshippers of the Lord because you teach the Book and because you study (it).”[16]

This provision explains in the most emphatic terms that the func­tion of a Prophet is to submit himself to the will of Allah and to apply Divine principles in cases of dispute and not to resort to his personal wishes or whims. Thus there is no room in the contents of the Qur’ān for the dictum “The king can do no wrong” in Islamic polity.

Non-Muslim Autonomy. The non-Muslims living within the territories of the Islamic State were guaranteed religious and social autonomy in the Constitution of Medina. Politically, they were components of the constitutional machinery alongwith the Muslim community. Political and inter-tribal disputes were to be referred to the Holy Prophet according to the provisions of the aforesaid Constitution. In religious and social matters the non-Muslims were given full freedom. They were free to decide their cases in accordance with their religious laws. The Qur’ān also approved the religious autonomy of the non-Muslims, particu­larly of the Jews and the Christians. Referring to the autonomy of the Jews, the Qur’ān provides :

“Surely We revealed the Torah, having guidance and light. By it did the Prophets who submitted themselves (to Allah) judge for the Jews, and the rabbis and the doctors of laws, because they were required to guard the Book of Allah and they were wit­nesses thereof. So fear not the people and fear Me, and take not a small price for My Messenger. And whoever judges not by what Allah has revealed, those are the disbelievers.”[17]

The last portion of the constitutional provision is important:

“And whoever judges not by what Allah has revealed, those are the disbelievers.” It approves the legitimacy of the religious law of the Jews who were required to adjudiate their religious affairs according to it. In case they fall short of it they are the dis­believers.

The Christiana have been guaranteed their religious autonomy in the following fundamental ordinance of the Qur’ān :

“And let the People of the Gospel judge by that which Allah has revealed in it. And whoever judges not by what Allah has revealed, those are the transgressors.”[18]

This constitutional provision requires that the Christians should follow their religious law in their religious affairs. If they do not judge their cases according to the revelation, they are the transgressors.

Discretion of the Holy Prophet. Despite the autonomy of the non-Muslims, the Jews referred their cases to the Holy Prophet. In such cases they desired that the judgment should be of their liking. The Qur’ān provided that it was at the discretion of the Holy Prophet to admit their cases for hearing and trial or to reject them. In case he agreed to adjudicate he should decide them in accordance with law and justice and should not fear them. The Qur’ān provides :

“So if they come to thee, judge between them or turn away from them. And if thou turn away from them, they cannot harm thee at all. And if thou judge, judge between them with equity. Surely Allah loves the equitable.”[19]

The Jews knew the injunctions of the Torah and were fully conversant with its laws. Parallel to the contents of the Torah they had developed legal practice which was contrary to the law proper.

They wanted to get recognition of their ultra-Torah practice for the Holy Prophet. The Qur’ān exposed their ulterior motives and informed the Holy Prophet in the following text :

“And how do they make thee a judge and they have the Torah wherein is Allah’s judgment? Yet they turn away after that ! And these are not believers.”[20]

Supremacy of Law and Justice. Enforcement of law against the offenders is the lowest degree of administration of justice accord­ing to the Qur’ān. The highest degree is to prepare the people on moral grounds and to uplift them spiritually so that they safeguard and watch the interests of others instead of violating them. With this moral uplift if an offence is committed by the enemy the Muslims are required to do justice and refrain from excesses. They are enjoined to uphold the cause of justice; “O you who believe ! be upright for Allah, bearers of witness with justice.”[21] Even in the face of aggressive and subversive activities of the enemy the Muslims must hold fast to the standard of justice: “And let not hatred of a people incite you not to act equitably. Be just ; that is nearer to observance of duty.”[22]

As regards offences committed by members of the community against one another, the Qur’ān lays down that in such cases the Muslims must submit to the Quranic injunctions instead of following their wishes and whims. This provision has been ex-tended even to cases where someone has to appear against his relative : “And when you speak, be just, though it be against a relative.” [23]

Another ordinance has further elaborated this Quranic injunction and has extended it to oneself and the closest and nearest relatives :

“O you who believe ! be maintainers of justice, bearers of witness for Allah, even though it be against your own selves or parents, or near relatives —whether he be rich or poor, Allah has a better right over them both. So follow not your low desires, lest you deviate.”[24]

Knowledge of Law. “Ignorance of law is no excuse” is a dictum accepted by the upholders of the Roman and Common Law in the West. The Qur’ān rejects this dictum outright. According to the law of the Qur’ān, a person is held responsible for his offence only

when the law has been duly explained to him. The Qur’ān provides : “We do not chastise until We raise a messenger.”[25] For the convenience of the people and for their better understanding of the law, the Messengers were raised from among the people who explained it in their own language : “And We sent no messenger but with the language of his people, so that he might explain to them clearly.”[26] The People of the Book—the Jews and the Christians—have been warned for their excesses by sending a Prophet and by explaining to them the contents of the Divine Law so that they might not put up a defence that they were caught unawares :

“O People of the Book! indeed Our Messenger has come to you explaining to you after a cessation of the messengers, lest you say : There came not to us a bearer of good news nor a warner. So indeed a bearer of good news and a warner has come to you.”[27]

The main function of the Holy Prophet of Islam is to explain the contents of the Holy Book, the Qur’an, the Law of Islam :

“And We have not revealed to thee the Book except that thou mayest make clear to them that wherein they differ . . .[28] ; “. . We have revealed to thee the Reminder that thou mayest make clear to people that which has been revealed to them, and that haply they may reflect”[29] ; “. . . may keep their duty “[30]; “.. . may ponder”[31] ; “. . . may be mindful”[32] ; “. . . may understand”[33] ; “. . . may be guided”[34] ; “. . . may give thanks.”[35]

Finally the limits of the law (hudūd) and punishments thereon are made clear so that the loyal and the obedient are distinguish­ed from the traitors and the effenders and the punishments are applied after the law has been duly explained and made known : “And these are the limits of Allah which He makes clear for a people who know. “:[36]

Law of Evidence. Evidence is the backbone of all judicial systems. No right can be established nor can justice be administered without evidence. The Qur’ān contains fundamental injunctions on this most important judicial matter. The Quranic law of evidence is given below.

Adultery. Priority has been given to evidence dealing with cases of adultery. The highest number of witnesses, four, have been prescribed to establish the charge of adultery :

“And as for those of your women who are guilty of adultery call to witness against them four (witnesses) from among you.”[37]

“And those who accuse free women and bring not four witnesses, flog them (with) eighty stripes and never accept their evidence, and those are the transgressors.”[38]

Al-Sarakhsī, while giving reasons for greater number of witnesses in case of adultery, points out that God likes to protect privacy (yuhibbu al-satr) and does not like to spread indecency (la yard a bi ishā’at al-f āhishah).[39]

Civil and Criminal Offences. Two witnesses are required in all other civil and criminal offences :

“And call to witness from among your men two witnesses ; but if there are not two men, then one man and two women from among those whom you choose to be witnesses, so that if one of the two errs, the one may remind the other.”[40]

The later Muslim jurists have made a distinction between civil and criminal cases requiring absolutely two male witnesses, and cases wherein mixed evidence of one man and two women is accepted. In cases of retaliation (qisās) and penal offences (‘uqūbāt) they hold that evidence of two men is necessary. In cases of family laws such as marriage, divorce, freeing of’ slave (‘itāq) and genealogy (nasab), they accept the mixed evidence of one man and two women,[41] although the Qur’ān, without making such distinction, has prescribed the above law in a matter of debt.

Mutual Dealings. Evidence, from judicial point of view, is valid only when it is produced in a court of justice. The Qur’ān has prescribed some measures which help facilitate the regulation of judicial procedure. The Muslims have authoritatively been directed to record the proceedings of their private transactions and mutual dealings. Such agreements should be duly signed by at least two male witnesses or one male and two female witnesses. This procedure is necessary because it helps the courts in decid­ing such cases justly. The Qur’ān provides this procedure as follows :

“O you who believe ! when you contract a debt for a fixed time, write it down. And let a scribe write it down between you with fairness ; nor should the scribe refuse to write as Allah has taught him, so let him write. And let him who owes the debt dictate, and he should observe his duty to Allah, his Lord, and not diminish anything from it. But if he who owes the debt is unsound in understanding or weak, or (if) he is not able to dictate himself, let his guardian dictate with fairness.”[42]

The guardian of an orphan has also been directed to record evidence at the time he should hand over the property of the orphan : “And when you make over to them their property, call witnesses in their presence.”[43]

The spouses are directed to call two just witnesses in case they should not pull on as husband and wife and decide to separate by way of divorce : “And call to witness two just ones from among you, and give upright testimony for Allah.”[44]

Instructions to Witnesses. Decision of a case depends on evidence. Apart from the written and documentary evidence the uprightness and integrity of the witnesses play a vital role in establishing the right of the contending parties. In view of the key position of the witnesses the Qur’ān has laid down a procedure according to which the witnesses are duty bound to appear in court and give evidence : “And the witnesses must not refuse when they are summoned.”[45]

The Quranic law of evidence is unique in the sense that it debars a witness proved to be false and dishonest from appearing in a court of justice, ever after. Further, if an accuser cannot prove his accusation he is liable to be punished and is debarred for ever from becoming a witness

“And those who accuse free women and bring not four witnesses, flog them with eighty stripes and never accept their evi­dence, and these are the transgressors.”[46]

However, it is the duty of the Islamic State to protect and safeguard the honour and person of the upright and honest wit­nesses, so that they depose in court of their free will : “And let no harm be done to the scribe or to the witnesses.”[47]

Giving constitutional protection to witnesses, the Qur’ān has provided that the witness must speak out the truth and details of the facts without fear or favour. If he does not perform his duty honestly or conceals the facts he is a sinner : “And conceal not testimony. And whoever conceals it, his heart is surely sinful.”[48]

Execution of the Constitutional Provisions on Judiciary. The Qur’ān invested the Holy Prophet with supreme powers as judi­cial head of the Islamic State. Its citizens were under constitutional obligation to appear in his court for the adjudication of their disputes (fa in tanāza’tum fī shai-in fa ruddūhu ila Allah wa al-Rasūl).[49] This obligation is included in the covenant of thair faith : in kuntum tū’minūn bi Allah wa al-yawm al-ākhiri[50] [If you believe in Allah and the Last Day]. In case they do not follow the constitutional and judicial requirements they cease to be believers : Falā wa Rabbika lā yū’minū n haltā yuhakkimūka fi nzZ shajara bainahum thumma lā yajidū fī anfusihim harajan mimmā qadaita wa yusallimū tasl imā.[51] [But no, by thy Lord ! they believe not until they make thee a judge of what is in dispute between them, then find not any straitness in their hearts as to that which thou decidest and submit with full submission).

With the investure of the constitutional and judicial powers the Holy Prophet executed and implemented the Quranic fundamental and basic principles. He worked out their details and laid down positive principles for efficient and impartial justice. He defined the duties of the judge trying all kinds of civil and criminal cases. The rules of production and admissibility of evidence in the trial of cases were framed and the procedure for the trial of offenders was chalked out. [52] With the establishment of this system, the tribal organisation of the Arabs, the decentralised rule of the shuyūkh in the desert regions and that of small princes and chieftains in more fertile areas gave place to a powerful central government with a single legal, moral and religious code.[53]

(2) Judicial Procedure Adpoted by the Holy Prophet

Supremacy of Evīdence. Under the judicial system set up by the Holy Prophet supreme importance was given to evidence produced in a court of justice. The disputants were given full freedom to present their cases and express their point of view. Detailed inquiries and investigations were conducted to bring to the knowledge of the courts the real circumstances leading to the commission of the offence. The ultimate reliance for the decision of a case was made on the apparent evidence. This procedure was based on the following judicial principle laid down by the Holy Prophet who, addressing some disputants in his court, said : “I am mortal. You bring your disputes to me. Maybe some-one of you presents his argument more eloquently than the other. Hence, I decide according to what I hear. Therefore, the person in whose favour I decide the right of his brother (opponent) he should not accept it. Because in such a case I virtually award him a portion of Hell-fire. “[54] In the above rule the words : fa aqdi nahwa mā asma’ [hence I decide according to what I hear] and fa ahsabu annahū sādiq [and I think he is truthful][55] are the crux of the rule. They determine that the cases were decided on the apparent evidence. Ibn ‘Arabī, in explanation of the above rule, held that the decision would be taken on the apparent evidence and not on its hidden meanings : ann al-qada innamā yakūn bizaāhir al-qawl la bi balm al-hāl fa in /can alhukm fī al-zāhir bi ma la yahillu lahū fa al-bātin.”[56]

The last portion of the above case, as reported by Abū Dāwūd, is important from the moral point of view. After hearing from the Holy Prophet that his decision based on apparent evidence does not make the lawful (halal) unlawful (harām) or the unlawful lawful (fa innā qadā’ al-hākim la yuhillu harāman wa lā yuharrimū halālan),[57] both the disputants wept. They said to each other: ‘My right is for you” Thereupon the Holy Prophet advised them: “If you have come to terms, then divide equally by casting lots.”[58]

it may look strange to the legists that a judicial head should act as a moral teacher in the law court. It is pointed out that the foremost function of Muhammad (peace and blessings of Allah be upon him) was Prophethood. His primary duty was to educate the people and make them morality-conscious. During this process if dispute should arise among the people the Holy Prophet would act as justice among them. This integration and synthesis of the legal and moral aspects of life is the principal characteristic of the Islamic judicial system which distinguished it from all other systems. It may not be out of place to mention here that law devoid of morality induces people to further litigation, and judgments and decisions delivered on the basis of legal proceedings do not always satisfy the party whose right has been lost for want of evidence. Here in the case under reference legally the decision might have been taken in favour of the one who was more eloquent and who could advance convincing arguments. Morally his opponent might have been on stronger grounds. However, the judicial regulations framed by the Holy Prophet are very explicit. Judicial decisions and judgments shall be taken purely on the basis of the face value of the evidence. The litigants should,- however, be advised that, religiously speaking, the judicial decision cannot make the lawful unlawful and the unlawful lawful for which the offender would be account-able on the Day of Judgment.

One Witness Alongwith An Oath. Law of evidence as prescribed by the Qur’ān has been discussed in the constitutional part’ of this paper. During the implementation of that law in courts the judicial procedure necessitated further legislation by the Holy Prophet himself. According to the Quranic law of evidence, four witnesses are required in adultery cases-[59] and two male witnesses or one male and two female witnesses are necessary for all other criminal and civil disputes.[60] Some cases were presented to the Holy Prophet where only one witness was available. To facilitate the judicial procedure and to enable the courts to decide a case more expeditiously the Holy Prophet laid down that one witness alongwith oath shall be sufficient evidence for the decision of a case. Thereafter, such cases were decided accordingly : “The Holy Prophet made judgment on the basis of an oath, alongwith one witness” [qadā bi al-yamin ma’ al‑shāhid].[61] Equalīty of Muslims as Witnesses. All Muslims are treated equally as witnesses regardless of their religious, social, and political status. Evidence of a judge who happened to be a wit­ness personally to an incident shall not be considered a sufficient

proof for the decision of a case. He shall be treated as one witness like other Muslims :

“ ‘Umar asked ‘Abd al-Rahmān b. ‘Awf what was his opinion about the evidence of a ruler who himself happened to be a witness of commission of adultery or theft by someone. He said : Your evidence shall be like the evidence of one person among the Muslims. He said : You have spoken the truth.”[62]

The best example on the subject under reference is the case wherein the Holy Prophet himself was party against a bedouin and was asked to produce a witness in support of his claim.

Khuzaimah b. Thābit bore witness for the Holy Prophet. Its details are as follows.

The Holy Prophet bought a horse from a bedouin, and asked him ,to follow him for the receipt of its price. He was fast in his walk while the bedouin was left behild for his slowness. People began to meet the bedouin and started offering a higher price for his horse. They did not know that the Holy Prophet had bought it. The bedouin called the Holy Prophet and asked: Would you buy this horse or should I sell it (to someone else) ? The Holy Prophet stopped on his calling and asked : Have I not bought it from you ? The bedouin replied : No, by God, I have not sold it to you. The Holy Prophet exclaimed: Why not? I have bought it from you. Thereupon the bedouin started asking: Bring any witness. Khuzaimah b. Thābit said: I bear witness that you have bought it from him. The Holy Prophet moved forward to Khuzaimah and asked : On what basis do you bear witness ? He replied: On the basis of your confirmation, Messenger of God! The Holy Prophet treated the evidence of Khuzaimah equal to the evidence of two men.[63]

The Qur’ān has desired that the _ scribes of transactional documents and witnesses of cases should not refuse whenever they are called.[64]

The Holy Prophet declared that the best witnesses were those who bear witness even before it is asked for : “Should I inform you about the best of the witnesses? It is he who comes to bear witness before it is asked for.”[65]

Witness of a Bedouin Against a City-dweller. Abū Dāwūd and Ibn Mājah, in their Sunans, have reported that the Holy Prophet did not allow the evidence of a bedouin against a settler : “Abū Hurairah heard the Holy Prophet saying : Evidence of a bedouin is not allowed against a settler.”[66] Abū Sulaimān al-Khattābī, in his Ma’ālim al-Sunan, has commented upon this rule of evidence as follows :

“He (the Holy Prophet) disallowed the evidence of the bedouins because of their aversion to the faith (d In) and their ignorance of the Shari’ah laws. For mostly they do not recollect evidence exactly and do not bear it accurately due to their lack of knowledge which intervenes and changes its face value.”[67]

However, majority of the jurists held : “Evidence of the bedouin, if he is capable of hearing it on its face value, shall be acceptable.”[68] It seems that the Holy Prophet had not disqualified Prophet decided the case on the basis of his personal knowledge of the issue and Khuzaimah’s witness was a sort of confirmation, He held that the Holy Prophet in fact decided the case on the witness of Khuzaimah, which Was treated equal to two witnesses. Khuzaimah bore witness because he had heard from the Holy Prophet about the purchase of the horse. On the basis of the Prophet’s truthfulness and on the basis of Khuzaimah’s faith in his Prophethood, hīs witness was treated equal to the witness of two men (al‑ Tandhib, on the footnote of Mukhlasar Sunan Abī Dāwūd, V, 223-24).the bedouin as such. It was because of his antipathy to the faith and his ignorance of the Sharī’ah laws that no value was attached to his statement in that particular case; on the removal of such deficiency his evidence would be acceptable.

Evidence of a Woman. According to the prescription of the Qur’ān, testimony of two women has been treated as equal to the testimony of one man.[69]”, While applying this constitutional provision in law courts some relaxations were allowed in certain cases.” ‘Uqbah b. Hārith reports his own case in the following terms: “I married Umm Yahyā hint Abī Ihāb. A black woman called upon her, who maintained that she had suckled both of us together. I stated this to him. 1 he Holy Prophet turned away his face from me. Thereupon, I said: Messenger of Allah! she is a liar. He said: What makes you realise it while she has said what she has said? Keep her away from you.”[70]

The Quranic prescription on the issue of a female witness is not unqualified. Its cause has specifically been mentioned in the same verse of the Qur’ān: An tadilla ihdāhumā fatudhakkira īhdāhuma al-ukhrā[71] [so that if one of the two errs, the one may ‘remind the other.]

The cause of dalālah is not perhaps the inherent and intrinsic disqualification. It may be compared with the disqualification of a bedouin as discussed above and al-Khattābī’s opinion thereon.

Disqualified Witnesses. Integrity and honesty of witnesses play a vital role in the Islamic judicial system. Such a provision, perhaps, does not exist in the modern Western legal systems.

The Qur’an has laid down a broad principle against false testimony : “So shun the filth of the idols and shun false statement (qawl al-zūr).”[72] Under this Quranic provision the Holy Prophet disqualified the liar as a witness. Khuraim b. Fātik al-Asadī reports that the Holy Prophet, after a morning prayer, held an assembly session and announced the following provision in the law of evidence:

“‘False testimony has been equalised with setting up of associates to God.’ He repeated the announcement thrice, and then recited the verse: ‘So shun the filth of the idols and shun false statement.’ “[73]

Dishonesty, punishment under Divine law and personal enmity, if established, debar a person from being a witness. The relevant provision has been reported in the following words of the Holy Prophet:

“The testimony is not allowed of faithless man and the faithless woman and not of the one punished under Divine law, and not of the carrier of enmity against his brother.”[74]

According to a report in the Sunan of Abē Dāwūd the testi­mony of the adulterer, man or woman, is also not acceptable.[75]

Circumstantial Evidence. The Islamic judicial system set up by the Holy Prophet admits circumstantial evidence for establishing the commission of certain offences. For the vindication of Joseph’s character the Qur’ān has referred to a circumstantial evidence suggested by a member of the king’s family as follows

“And a witness of her own family bore witness: If his’ shirt is rent in front, she speaks the truth and he is a liar. And if his shirt is rent behind, she tells a lie and he is of the truthful. So when he saw his shirt rent behind, he said: Surely it is a device of you women. Your device is indeed great.”[76]

Cases have also been reported wherein the Holy Prophet admitted circumstantial evidence. The famous case regarding the paternity of a disputed child was decided on the basis of such evidence.

It is, however, important to note that the Islamic judicial system has not admitted the circumstantial evidence indiscrimi­nately. It is admitted only in cases wherein the Qur’ān has not fixed the number of witnesses explicitly. But the grave offences committed against life, honour, property, religion and State which in return involve capital punishment, stoning, amputation of hands, flogging and banishment from the Islamic State, hudūd and ta’zīrārt. have not been allowed to be decided and punish­ments awarded merely on the basis of circumstantial evidence. This is a unique distinction of the Islamic judicial system which makes it more progressive and advanced than other systems. A murder case is quoted below as an illustration. ‘Abd Allah b. Sahl and Muhayyisah went to Khaibar due to poverty which overpowered them.[77] Later on Muhayyisah was informed that ‘Abd Allah has been killed and thrown into a stream or a water-way. He approached the Jews and accused : By God, you have killed him. They said : We have not, by God, killed him. Then he proceeded and reached his people and mentioned it to them. He, his elder brother Huwayyisah and ‘Abd al-Rahman b. Sahl proceeded to report the case and to explain it. The Holy Prophet directed Muhayyisah that his elder brother should speak first. Hence Huwayyisah gave his statement, then spoke Muhayyisah. Thereupon the Holy Prophet announced : Either they (the Jews)[78] should pay blood-money of your companion or they should get ready for war. The Holy Prophet sent this to them in writing. They replied in writing:[79] We have not killed him. Then the Holy Prophet asked Huwayyisah, Muhayyisah and ‘Abd al-Rahmān : Do you solemnly declare on oath and establish the right of the blood of your companion? They declined. He then asked : Should the Jews declare solemnly on oath for you? They said : They are not Muslims, The Holy Prophet gave one hundred camels as his bloodwit by himself [80] (from State treasury, min ibil al-sadaqah).[81]

The above details of the case show that an elaborate judicial procedure was adopted for its trial. Preliminary investigation was conducted by a party of the Muslims. They inquired from the Jews in whose territory the murder had been committed : We qālū lilladhī wujida fī him, and accused them for the murder : Qatalrum sāhibana. On the basis of the investigation report, the case was submitted to the court of justice at Medina. Proper trial was held. Statements were heard and the testifiers were cross-examin­ed. Written order of the court was sent to the accused who was also warned of the severe consequences of the offence (immā an yu’dhinu bi harbin). Their written statement was also obtained. According to Imām al-Bukhārī, the Holy Prophet sent his written judicial order to his district magistrate appointed at Khaibar for investigation into the case. Al-Bukhārī’s view is reflected in the topic of the chapter under reference : Kira al-Hākim ilā ‘Ummālihī (letter of the ruler to his governor-judges). In the absence of the eye-witnesses, the claimant and the testifiers (investigators) were asked to take oath or accept the oath of the accused which they declined.

In view of the above proceedings, the court did not find any substantial evidence in the absence of the eye-witnesses; therefore, the chief justice decided not to award any punishment to the accused merely on circumstantial evidence. The bloodwit was paid from the State treasury so that the blood of a Muslim was not wasted : Fa kariha Rasūl Allah an yubtila damahu.[82] It appears from the proceedings of the criminal and civil cases referred to and decided by the Holy Prophet that adequate administrative machinery existed for their investigation, prosecution and judicial decisions.

Investigation and Prosecution. The preliminary stage of a case is its investigation. It is certain that police stations on modern pattern were not set up by the Holy Prophet. The cases and disputes were directly reported to the chief justice at :Medina or to his deputies appointed at various district head-..quarters. It emerges from the historical record that the Holy Prophet had appointed certain persons who acted as police officers whenever it was necessary. A report of Anas b. Mālik in al-Sahīh of al Bukhārī shows that Qais b. Sa’d from among the Ansār[83] of Medina was assigned the function of the head of the police force: “Qais b. Sa’d used to perform his duties before the Holy Prophet in the capacity of the head of the police appointed by the ruler.”[84] Al-Kirmānī, commenting on the report, has pointed out that the repetition of the word kawn indicates the continuity of his office (al-istimrār wa al-dawām), i.e. Qais remained in his office and was not appointed on ad-hoc basis.[85] Al-shurat, plural of al-shurtah, indicates that there was a force of which Qais was the head (sahib al-shurat). Ibn Hajar says : Sāhib al-Shurat means the head of the force (kabīruhum).[86] Qais in his capacity as the head of such a force was marching before the Holy Prophet at his arrival in Mecca and was enforcing his orders (mā yanfudhu fi-umūrihī).[87]

Some other names belonging to such a force have also been reported. Unais, diminutive of Anas b, al-Dahhāk al Salamī [88] was appointed as an investigation officer in an adultery case entrusted to him. Abū Hurairah and Zaid b. Khālid al-Juhanīyy have reported this case as follows :

“A bedouin came to the Holy Prophet and requested: Messenger of Allah! decide among us in accordance with the Book of Allah. His opponent stood up and said: He has spoken the truth, so decide among us in accordance with the Book of Allah. Then the bedouin stated: My son was his servant, who committed adultery with his wife. They told me that my son was liable to be stoned. Hence, I gave one hundred goats and one slave as his bloodwit. Then I inquired from the learned who informed me that my son was liable to one hundred s-tripes and exile for a year. Thereupon the Holy Prophet said : I shall certainly decide among you in accordance with the Book of Allah. As regards your goats and slave they are returned to you. Your son is liable to one hundred stripes and exile for one year. As for you, O Unais, you proceed towards the wife of this person (investigate into the matter). If she confesses her guilt, then stone her.”[89]

In this case Unais was entrusted with the inquiry of the case and was also empowered to execute the order of the court in case the accused pleaded guilty.

Abū Burdah b. Niyar was also employed by the Holy Prophet.

for investigation and inquiry purposes. Al-Tirmidhī and Ibn Mājah have recorded that he was the investigation officer in the following case reported by al-Barā’ b. ‘Āzib :

“My uncle Abū Burdah b. Niyar passed by me. He was carrying a flag arranged for him by the Holy Prophet. I asked him: Where do you intend to go ? He replied: The Holy Prophet has sent me to a man who has married the wife of his father after his death. He, therefore, ordered me to behead’ him.”[90]

This case shows that as soon as some offence was reported to the Holy Prophet he immediately entrusted its inquiry to a responsible person.

Qurrah father of Mu’āwiyah was entrusted with the inquiry of a case wherein a man had married the wife of his father.[91]

In the following case of highhandedness a party was sent by the Holy Prophet for the arrest of the offender. Ibn Sharahbīl reported : I came to Medina with my uncles. I entered an orchard and took from them some ears of grains and rubbed them. There appeared the owner of the orchard who took away my clothes and beat me. I came to the Holy Prophet seeking his support (justice). He sent (a party) to the offender who brought him along. He asked him : What made you attack him ? He said : Messenger of Allah! he entered my orchard, took from there some ears of grains and rubbed them. The Holy Prophet admonished him : You did not teach him if he were ignorant, and you did not provide him food if he were hungry. Return his clothes. He ordered for me a wasq or half a wasq. [92]

Judicial Proceedings. On the basis of the investigation reports and preliminary inquiries the cases were formally submitted to the court of justice for their proper adjudication. The Hādīth and Fiqh books contain detailed rules and principles on the conduct of a judge in the law courts, of which the Holy Prophet himself was the embodiment par excellence. The judge should not be in angry mood at the time of decision.[93] He must strictly follow the Book of Allah and always decide in accordance with its contents. Decisions and judgments of the Holy Prophet were also binding on the judges. In case of silence of these sources, the judges were allowed to exercise their own judgment.[94] The litigants should be seated [95] equally and should be given opportunity without any discrimination. Both the parties must be heard and judgment must not be announced until the other party has been heard in the same way as the first one.[96]

Obligations of the Litigants. The Holy Prophet framed rules and regulations for establishing a right in a claim, and also the responsibility of the plaintiff and of the defendant. A broad principle has been reported from the Holy Prophet by Muslim in his al-Sahīh : “If the claimants’ assertions were accepted (without proof) they would demand the blood of men and their properties: but the onus of oath is on the defendant.”[97] On the basis of the above general rule a specific regulation was formulated by the Holy Prophet : “Onus of proof(al-bayyinah) is on the plaintiff, and the oath is on the defendant,”[98]

This regulation was put into practice by the Holy Prophet in the following judgment. A man from Hadramawt and another from Kindah came to the Holy Prophet. The Hadramī stated : This man has encroached upon my land. The Kindī stated : That is my land and in my possession. He has no right over it. The Holy Prophet inquired from the Hadramī : Do you have any proof (bayyinah) ? He said : No. He said : Then you accept his oath. He stated: Messenger of Allah ! the man is libertine. He does not care for his oath, and does not refrain from anything. He said Nothing is for you from him except that. The other man proceed­ed to take the oath. When he went away the Holy Prophet said to the plaintiff : If he takes a false oath to swell on your property unjustly, then he would meet Allah while He had turned away his face from his.[99]

Confession. Confession by the offender of his offence was considered to be sufficient evidence for the decision of a case. Some important decisions made by the Holy Prophet on the basis of confession are given below for illustration. Mā’iz b. Mālik al-Aslamī committed adultery. He confessed his guilt in the court of justice and was awarded punishment. Abū Hurairah has reported this case as follows: “A man came to the Holy Prophet. He was in the mosque. He addressed him : Messenger of Allah! I have commited adultery. The Holy Prophet turned his face away from him. He went to the side of his face and stated : Messenger of Allah! I have committed adultery. He turned his face away from him. He moved to the side of the Prophet’s face and made confession. In this way when he had made his confession’ of guilt four times, the Holy Prophet called him (for cross-examination). He asked him : Are you suffering from madness? No, he said to the Holy Prophet. He asked him. Are you married ? He said : Yes, Messenger of Allah! Thereupon he ordered the people : Take him and stone him.”[100]

Ibn ‘Abbās has reported some more questions and answers during the cross-examination : “He (the Prophet) asked him : Perhaps you only kissed her or touched her or looked at her ? No, he said to the Holy Prophet. He concluded : You positioned her for the sexual act, without leaving any doubt. Thereupon he passed his judgment for his stoning,”[101] Here the confession of the offender was so unambiguous that it needed no corroborative evidence or witness for establishing the guilt. Hence the court passed judgment for the award of punishment.

No discrimination between a man and a woman has been made in case of confession. Confessions of women were also taken as sufficient evidence for the proof of commission of an offence and judgments were passed on their basis without asking for corroborative evidence. A woman from the Juhainah confess­ed her guilt of adultery before the Holy Prophet. She also disclosed that she had become pregnant. The Holy Prophet summoned her guardian and directed him : Treat her well. When she gives birth report it to me. He acted accordingly. He passed order for her stoning.[102] Confession in case of theft was also accepted as sufficient proof. Ibn Mājah has recorded a case of theft reported by Abū Umayyah. A thief was produced before the Holy Prophet. Stolen property was not recovered from him. However, he pleaded guilty and made two confessions before the chief justice. Thereupon the Holy Prophet passed order for cutting off of his hand, which was done.[103]

Compromise. Cases were also referred to the Holy Prophet wherein weight of proof and argument was equal on both sides. in such cases the actual possession played a vital role in their decision. The following case reported by Jābir is given as an illustration. Two men brought a dispute over a she-camel before the Holy Prophet. Each of them stated : This she-camel be-longed to me, and. produced evidence. Therefore, the Holy Prophet decided in favour of the person who had her actual possession .[104]

In cases where no evidence was produced from either side, the court brought the litigants to terms and effected compromise be­tween them. Abū Mūsā al-Ash’arī reported the following cases. Two litigants filed a suit with the Holy Prophet. They had a dispute over an animal. Neither of the two had evidence. The Holy Prophet decided (that the animal be divided) half-and-half between the two.[105]

Two persons were working together in digging a well. One of them raised his pickaxe, hit with it the head of his companion and killed him. The brother of the murdered man filed .complaint in the court of the Holy Prophet. From the statement of the plaintiff and the evidence produced, the Holy Prophet reached the conclusion that it was an unintentional murder. He, therefore, urged upon the plaintiff for compromise. Thereupon he forgave the accused and the Holy Prophet decided the case on compromise.[106]

Execution of the Judicial Decisions. Expeditious disposal of cases, correct decisions and execution of the judicial judgment are the fundamental principles of the most progressive and efficient judicial system The cases quoted above adundantly make it clear that the judicial set-up established by the Holy Prophet fulfilled the requirements of the most progressive judicial system. Speedy disposal of legal cases and their correct decision fail to produce positive results until they are efficiently enforced by the executive machinery. The Holy Prophet took special care to ensure that his legal decisions and judgments were duly executed. He had set up executive machinery which was immediately moved for the implementation of his judgment. Qais b. Sa’d was the head of the enforcement party. Abū Burdah b. Niyar, Unais and Qurrah were employed for the execution of different judgments of the Holy Prophet.[107] The cases cited above for illustration under different heads show that all judgments of the Holy Prophet were duly executed.The adulterers were stoned, hands of the thieves were cut off, decisions on civil disputes were implemented. For further discussion on the subject another judgment is given below as reported by Samurah b. Jundub. He (Samurah) had a palm-tree in the orchard of a man from among the Ansār who was living there with his family. Samurah used to go to his palm-tree in the orchard which annoyed the Ansārī and created inconvenience for him. He asked him to sell it to him. He refused. He asked him to exchange it. He refused. He came to the Holy Prophet and stated the case to him. The Holy Prophet asked him to sell it to him. He refused. He asked him to exchange it. He refused. He asked him to give him as a gift. He refused Thereupon he passed his judgment : You are causing harm to him. Then he addressed the Ansārī and ordered: Go and cut down his palm-tree.[108]”

The following case is also a pertinent reference to the subject. Al-Zubair b. ‘Awwām had a dispute with a man from the Ansār (Hātib b. Abī Balta’ah) who was present at the battle of Badr, over a water-way by which both of them watered their fields. The Ansāri said : Let the water flow without hindrance. Al-Zubair refused his request. The Holy Prophet asked al-Zubair: Water your field, O Zubair, then leave it to your neighbour. The Ansāri became furious and said : Messenger of Allah! because he is your cousin? The colour of the Holy Prophet’s face was changed. Thereupon he ordered : Water your field, then hold the water until it follows a more suitable course.[109] The judgment was executed immediately. Defiance of the judicial decision by the Ansārī entailed punishment for him. To prevent any such thing happening in future the following Divine law was revealed : “But no, by thy Lord ! they believe not until they make thee a judge of what is in dispute between them, then find not any straitness in their hearts as to that which thou decidest and submit with full submission.”[110]

Judiciary Free from Fear and Favour. The most conspicuous characteristic of the judiciary set up by the Holy Prophet was its impartiality. Without fear or favour it adhered to the fundamen­tal principles of justice and scrupulously maintained the rule of law. High social, political and religious status of any individual never influenced the administration of justice at Medina. The following case as reported by ‘Ā’ishah is given as an illustration. The Quraish became worried about the position of a lady of the Makhzūm who had committed theft. They discussed as to who would talk about her to the Holy Prophet. They said: Who can dare it except Usāmah b. Zaid, the favourite of the Holy Prophet ! Usāmah talked about her to the Holy Prophet. The Holy Prophet reprimanded: Do you mediate in a punishment of the law of Allah? Then he stood up and addressed: 0 people! those who were before you were destroyed because when a person of high social status committed theft they left him off; and when a weak one among them committed theft they inflicted on him the punishment (hadd). By God, if even Fātimah hint Muhammad has committed theft, Muhammad would have her hand cut off.”[111]

NOTES