سنن نسائي
Nasai
كتاب آداب القضاةThe Book of the Etiquette of Judges
بَابُ : الْقَضَاءِ فِيمَنْ لَمْ تَكُنْ لَهُ بَيِّنَةٌChapter: Passing Judgment When There is no Evidence
Hadith 5426
اُردوEn
أَخْبَرَنَا عَمْرُو بْنُ عَلِيٍّ ، قَالَ : حَدَّثَنَا عَبْدُ الْأَعْلَى ، قَالَ : حَدَّثَنَا سَعِيدٌ ، عَنْ قَتَادَةَ ، عَنْ سَعِيدِ بْنِ أَبِي بُرْدَةَ ، عَنْ أَبِيهِ ، عَنْ أَبِي مُوسَى : " أَنَّ رَجُلَيْنِ اخْتَصَمَا إِلَى النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فِي دَابَّةٍ لَيْسَ لِوَاحِدٍ مِنْهُمَا بَيِّنَةٌ فَقَضَى بِهَا بَيْنَهُمَا نِصْفَيْنِ " .
´It was narrated from Abu Musa:` That two men referred a dispute to the Prophet [SAW] concerning an animal, and neither of them had any evidence, so he ruled that it be shared equally between them.
Related hadith on this topic
Explanation & Benefits
Hafiz Muhammad Ameen
“Evidence” for example: a witness or a document, etc. Similarly, neither party had possession, or both had possession. The circumstantial indicators (qarā’in) also did not give preference to either side. In such a situation, this very decision will be made, or a drawing of lots (qur‘ah) will be conducted—whichever both parties agree upon, or whichever the judge (qadi) deems appropriate.
Source: Sunan Nasa'i: Translation and Benefits by Shaykh Hafiz Muhammad Amin Hafizullah, Page: 5426
Shaykh Umar Farooq Saeedi
Benefits and Issues:
Benefit: The principle of testimony in Islam is an effective means of decision-making for every kind of situation.
If the claimant (plaintiff) has one witness,
then to make up for the lack of a second witness, he will take an oath (qasam). If he has no witness,
and the defendant does not wish to take an oath,
then the judge (qadi) can reconcile both parties with their mutual consent.
In such reconciliation, the disputed property may even be divided equally.
If they are not willing to reconcile, then the judge can also decide
that whoever among you takes an oath, the property will be his.
If even then both refuse to take an oath, then lots will be drawn,
and whosever name comes up, he will have to take an oath or else withdraw his claim.
From hadiths 3613 to 3619, all the above-mentioned principles become clear.
Islam has given fundamental importance to testimony and oath for the resolution of disputes.
No other legal system has stated all these principles of testimony and oath.
Benefit: The principle of testimony in Islam is an effective means of decision-making for every kind of situation.
If the claimant (plaintiff) has one witness,
then to make up for the lack of a second witness, he will take an oath (qasam). If he has no witness,
and the defendant does not wish to take an oath,
then the judge (qadi) can reconcile both parties with their mutual consent.
In such reconciliation, the disputed property may even be divided equally.
If they are not willing to reconcile, then the judge can also decide
that whoever among you takes an oath, the property will be his.
If even then both refuse to take an oath, then lots will be drawn,
and whosever name comes up, he will have to take an oath or else withdraw his claim.
From hadiths 3613 to 3619, all the above-mentioned principles become clear.
Islam has given fundamental importance to testimony and oath for the resolution of disputes.
No other legal system has stated all these principles of testimony and oath.
Source: Sunan Abu Dawood – Commentary by Shaykh Umar Farooq Saeedi, Page: 3613
Shaykh Safi ur-Rahman Mubarakpuri
Takhrij:
«أخرجه أبوداود، القضاء، باب الرجلين يدعيان شيئًا وليس لهما بينة، حديث:3613، والنسائي، آداب القضاة، حديث:5426، والسنن الكبرٰي له:3 /487، حديث:5998.»©Explanation:
Imam Khattabi rahimahullah has said: It appears that both of them were holding that camel or animal in their hands. That is why the Prophet sallallahu alayhi wa sallam declared both of them entitled to half each. If this were not the case—that is, if the animal were in the possession of a third person besides these two—then merely by making a claim, both of them would not have become entitled to it. Mulla Ali Qari has said that it is also possible that the animal was with a third person who had no dispute with either of the two.
«أخرجه أبوداود، القضاء، باب الرجلين يدعيان شيئًا وليس لهما بينة، حديث:3613، والنسائي، آداب القضاة، حديث:5426، والسنن الكبرٰي له:3 /487، حديث:5998.»©Explanation:
Imam Khattabi rahimahullah has said: It appears that both of them were holding that camel or animal in their hands. That is why the Prophet sallallahu alayhi wa sallam declared both of them entitled to half each. If this were not the case—that is, if the animal were in the possession of a third person besides these two—then merely by making a claim, both of them would not have become entitled to it. Mulla Ali Qari has said that it is also possible that the animal was with a third person who had no dispute with either of the two.
Source: Bulugh al-Maram: Commentary by Safiur Rahman Mubarakpuri, Page: 1214
