Source: Fiqhi Ahkam o Masail in the Light of Quran and Hadith, Judicial Issues: Volume 02: Page 521
All praise is due to Allah, and prayers and peace be upon the Messenger of Allah. To proceed!
Generally, a Qazi needs to write a letter to another Qazi because sometimes a person's right is in another city, and to establish and claim that right, the only way is for him to prove his right before the Qazi of his own city. Then, for this purpose, a written correspondence is sent to the Qazi of the other city so that the judicial process can be completed. The reason for this is also that it is difficult to make witnesses travel and appear in court. Furthermore, it is possible that a witness is well-known in one city but unknown in another city. In such a case, correspondence between one Qazi and another becomes the means to establish the right.
If one judge writes a letter to another judge, it is unanimously accepted by the Muslim Ummah so that rights can be established and their enforcement can also be possible. Sayyiduna Sulaiman (peace be upon him) sent a letter to Queen Bilqis. Similarly, the Prophet Muhammad (peace be upon him) sent letters to Najashi, Caesar, and Khosrow, inviting them to accept Islam. Furthermore, the Prophet (peace be upon him) used to send letters to his agents and officials, which contained necessary instructions according to the circumstances. From all these evidences, it is understood that acting upon written instructions and information, and considering them valid in decisions, is legally correct.
A letter will be acceptable if it concerns a person's right; however, no letter related to the limits of Allah will be accepted, such as the punishment for adultery or for drinking alcohol. The reason is that in the rights of Allah, concealment is desired as much as possible, and limits are not enforced merely on the basis of suspicion or doubt.
① Letter from a Qadi to another Qadi: Its Two Types
✔ First Type:
The Qadi writes his judgment and sends it to another Qadi so that he may enforce it. Such a letter will be acceptable even if the sender and the recipient both reside in the same city. The reason is that the ruler’s judgment must be enforced in all circumstances; otherwise, the rulings will be suspended and disputes will increase.
✔ Second Type:
The Qadi writes to another Qadi about a matter that he considers verified and proven, so that the other Qadi may decide in light of it. This type of writing will only be accepted when there is at least the minimum distance between the two Qadis that is prescribed for shortening the prayer (Salat al-Qasr), because in cases of close proximity, transferring testimony from one place to another is not permissible.
The information about the proven matter will be conveyed to the other Qadi in such a way that he writes:
" میرے نزدیک یہ بات متحقق اور ثابت ہے کہ فلاں شخص کافلاں پر یہ یہ حق ہے۔"
It should be noted that such a writing in itself will not be considered a verdict, but it will only be a report of an established matter, in the light of which another judge will issue his decision.
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says:
" مکتوب الیہ(قاضی) غیر معین بھی ہوسکتا ہے،مثلاً:قاضی کہے:میری یہ تحریر بلاتعین مسلمانوں کے ان تمام قاضیوں کی طرف ہے جن کو یہ خط پہنچے ،لہذا یہ تحریر جس قاضی تک پہنچ جائے اسے قبول کرنا ایسے ہی ضروری ہے جیسے کسی معین قاضی کی طرف لکھی گئی تحریر۔"
② When will the letter of one judge be acceptable to another judge?
The letter of one judge will be valid for another judge only when the writer also records the testimony of two just witnesses on his writing. Another opinion among the scholars on this issue is that if the other judge recognizes the style of writing of the writing judge, then it is permissible for him to act upon that writing, and in such a case, witnesses are not required. This view is reported from Imam Ahmad, may Allah have mercy on him. In the present era, instead of witnesses, if the judge signs his writing at the bottom and the court seal is also affixed, then this is sufficient.
Imam Ibn Qayyim, may Allah have mercy on him, says:
" صحابہ رضوان اللہ عنھم اجمعین کا اس بات پر اجماع ہے کہ تحریر پر اعتماد کرکے کاروائی کرنا درست ہے۔خلفائے راشدین رضوان اللہ عنھم اجمعین بھی اس پر عمل کرتے رہے۔علم کے میدان میں تحریرکا ذریعہ ہمیشہ سے قابل اعتماد رہاہے۔اس پر عمل چھوڑدیا جائے تو شریعت کے بہت سے احکام معطل ہوکررہ جائیں۔"
Reference: I'lam al-Muwaqqi'in 2/127
Testimony upon Testimony
Testimony on testimony means that one person says to another: "میری فلاں گواہی پر گواہ رہو" or says: "گواہ رہو کہ میں فلاں فلاں بات کی گواہی دیتا ہوں", etc. This implies representation. In jurisprudence terminology, the original witness is called Shahid al-Asl and his deputy is called Shahid al-Far’.
Allama Abu Ubaid, may Allah have mercy on him, has narrated the consensus of the scholars of Hijaz and Iraq on the permissibility of testimony on testimony in financial matters. Imam Ahmad, may Allah have mercy on him, also issued a fatwa permitting it. The reason is that it is a necessity for people. If it is not accepted, then testimonies related to matters like endowments, etc., will be wasted, and there will be delays in proving them before the ruler, or the original witness may pass away. In such a case, people will suffer harm and face severe hardship. Therefore, just as the testimony of the original witness is accepted, similarly, testimony on testimony must also be accepted.
③ Conditions for the acceptance of testimony on testimony
❀ 1. The original witness must permit the secondary witness, because the role of the secondary witness is within the order of deputation, and deputation is not valid without the permission of the original.
❀ 2. This testimony should be in a matter where the writing of one judge is acceptable to another judge, meaning it relates to the rights of people (Huquq al-'Ibad), not the rights of Allah (Huquq Allah).
❀ 3. The testimony of the secondary witness will be accepted only where presenting the testimony of the original witness is difficult, and this difficulty may be due to death, illness, long travel, a distance where shortening the prayer (Qasr) is permissible, or fear of the ruler, etc.
❀ 4. The excuse of the original witness remains valid until the decision of the case.
❀ 5. Both the original and secondary witnesses must remain steadfast in the court, i.e., in piety and righteousness, until the decision is made.
❀ 6. The secondary witness must be appointed by the original witness, so it is known on whose behalf he is testifying.
Withdrawal of Witnesses
If a witness withdraws their testimony, the following three cases are noteworthy in this matter:
◈ 1. If a witness retracts after a financial matter has been decided, the decision will not be affected because its requirements have been fulfilled; therefore, the decision will remain in effect. However, the witnesses will be liable for compensation because they will be considered at fault for trying to make someone other than the rightful owner the owner of the property.
◈ 2. If the judge makes a decision based on the oath of one witness and the plaintiff, and then the witness retracts, the entire compensation will be imposed only on that witness, because the main proof in the claim was that witness. As for the plaintiff’s oath, it was at the level of one party’s statement, and a party’s statement alone is not sufficient for a decision; rather, it is only a condition for the decision.
◈ 3. If the witness retracts their testimony before the judge gives a decision, the entire proceeding will be nullified. Now, no decision will be made based on that testimony, nor will anyone be liable for compensation. And Allah knows best.
Statement on Taking an Oath in a Claim
Oath is also included among the methods of decision-making. The Messenger of Allah, peace be upon him, said:
"واليمين على من أنكر"
"...and the oath is upon the one who denies (the claim)."
Reference: Sunan al-Daraqutni 3/111 and 4/217, Hadith 3165 and 4462
The oath will be taken by the denier of the claim, that is, the defendant, provided the claimant does not have evidence. The oath ends the dispute, meaning if the defendant takes an oath, the judgment will be in his favor. However, if he takes an oath and unjustly seizes something, that thing will not be lawful for him. If the claimant presents witnesses after the defendant's oath, their testimony will be heard, and based on it, a judgment will be made in favor of the claimant. Similarly, if the defendant retracts after taking the oath and returns the taken property, this act will be accepted, and it will be lawful for the claimant to receive that property.
④ Important rulings related to the oath
✔ 1. Oaths are specifically related only to claims involving the rights of people (Huquq al-'Ibad). Oaths are not taken in matters of the rights of Allah (Huquq Allah), such as acts of worship and Hudood (legal punishments), etc. Therefore, if a person says: "میں نے زکاۃ ادا کردی ہے" or "میرے ذمے کفارہ یا نذر نہیں ہے", no oath will be taken from him. Similarly, if someone is accused of a crime that could lead to a Hudood punishment but denies it, an oath will not be demanded from him, because it is preferable to conceal such matters. Also, if someone admits to a Hudood punishment and then retracts his admission, his retraction will be accepted and he will be released. On this basis, since retraction after admission is valid, in the absence of admission, demanding an oath will not be done a fortiori.
✔ 2. The importance and validity of an oath in claims involving the rights of people will be only when the claimant cannot present witnesses; then the judge will order the defendant to take an oath. Thus, the defendant’s oath will be in response to the claimant’s claim.
✔ 3. The oath must be administered in the presence of the judge’s assembly.
✔ 4. An oath can only be sworn by the name of Allah; swearing by anything other than Allah is shirk (polytheism).
✔ 5. Mentioning the name of Allah in an oath is sufficient. If a person says: "اللہ کی قسم" this is enough because this oath is mentioned in the Book of Allah. Allah Almighty says:
"وَأَقْسَمُوا بِاللَّهِ جَهْدَ أَيْمَانِهِمْ"
"Those people swore firmly by the name of Allah."
Reference: Al-An'am 6/109
Similarly, He said:
"فَيُقْسِمٰنِ بِاللّٰهِ"
"Then both of them swore by Allah."
Reference: Al-Ma'idah 5/107
And in another place, He said:
"أَرْبَعُ شَهَادَاتٍ بِاللَّهِ ۙ "
"Swearing four times by Allah."
Reference: An-Nur 6/24
The reason for this is that the word "اللہ" is the personal name of Allah Almighty, and it is not used for anyone else.
✔ 6. Words of emphasis in an oath will only be used in matters of extraordinary importance, for example, a crime for which Qisas (retribution), Diyat (blood money), or expiation by freeing a slave is not obligatory. In such cases, the judge may administer the oath with words of emphasis, for example, saying: " اس اللہ کی قسم جس کے سوا کوئی معبود نہیں جو پوشیدہ اور ظاہر معاملات سے باخبر ہے جو مواخذہ کرسکتا ہے،غالب ہے،جو نفع نقصان کا مالک ہے ،جو آنکھوں کی خیانت اور دلوں کی پوشیدہ باتوں سے باخبر ہے۔"
✔ 7. If there are multiple claimants and only one defendant, the defendant will take a separate oath for each claimant, because each has a separate right. However, if all claimants agree on the same oath, one oath will suffice, because in this case all have voluntarily waived their right to demand an oath.
Rulings on Confession
Confession means acknowledging the right of another. This word is derived from "مقر", which means "مکان", implying that the confessor places the right in its original position.
The reality of confession is that a person gives truthful information about another's right. Conversely, creating or proving a new right is not called confession.
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says:
" تحقیقی بات یہ ہے کہ اگرمخبر ایسے حق کی خبر دے جسے اس نے ادا کرنا ہے تو یہ اقرارہے اور اگر ایسے حق کی خبر دے جو اس نے دوسرے سے لینا ہے تو وہ مدعی ہے اور اگر ایسے حق کے بارے میں خبر دے جوکسی نے کسی اورشخص سے لینا ہے(اگر اس کے پاس وہ حق بطور امانت تھا) تو اسے مخبر کہیں گے ورنہ وہ گواہ کہلائےگا،لہذا قاضی ،وکیل،کاتب،یعنی منشی اور وصی(وصیت کرنے والا) یہ تمام حضرات اپنی اپنی ذمے داری کو ادا کرنے کی وجہ سے امانت دار ہیں،لہذا وکیل وغیرہ اپنے منصب سے معزول ہونے کے بعد جو خبر دیں وہ اقرار نہیں،عام خبر ہے۔اقرار کسی نئی ذمے داری کانام نہیں بلکہ جو چیز یاصورت حال پہلے سے موجود ہے اسی کا اظہار اوراطلاع ہے۔"
Reference: Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyya al-Iqrar 5/581
⑤ Detailed Rulings Regarding Confession
✿ 1. For the validity of acknowledgment, it is necessary that the person making the acknowledgment be sane and adult. Therefore, the acknowledgment of a child, insane person, or a sleeping person will not be valid. However, if a child is permitted limited transactions in trade, then within that limited scope, their acknowledgment will be considered valid.
✿ 2. It is also a condition for the person making the acknowledgment to do so willingly and with authority; therefore, a forced acknowledgment will not be valid.
✿ 3. Another condition for the validity of acknowledgment is that the person making it should not be someone who has been prohibited from financial dealings. On this basis, if a naive or foolish person acknowledges ownership of any property, it will not be valid.
✿ 4. It is also necessary that one should not acknowledge something that is in the possession or supervision of someone else. For example, if a stranger acknowledges responsibility for something belonging to a child, or if a person acknowledges regarding a waqf under someone else's management that certain payments are due on that waqf property, such acknowledgment will not be valid.
✿ 5. If the person making the acknowledgment claims that they were forced to acknowledge and did not do so willingly, their statement will be accepted on the condition that there is some evidence or witness supporting the truth of their claim.
✿ 6. If a patient acknowledges something about their property in favor of a person who is not legally their heir, such acknowledgment will be considered valid, because in such a case there is no fear of false accusation. Also, in a state of illness, a person is generally more cautious about their affairs, so the expectation of false statements from them is low.
✿ 7. If a person claims something and the other party, i.e., the defendant, confirms it, then this confirmation will be considered valid and counted as an acknowledgment. In Kashf al-Khafa, the following saying of the Prophet Muhammad ﷺ is mentioned:
"لاعذر لمن أقر"
"Whoever acknowledges, no excuse remains for him."
Reference: Kashf al-Khafa by Al-Ajluni 2/493
✿ 8. Any word that conveys the meaning of acknowledgment will be considered correct. For example, if the defendant says: "تم نے سچ کہا" or simply says "ہاں", or says: "میں اس کا اقرار کرتا ہوں".
✿ 9. An exception for half or less than half of the amount in acknowledgment is valid. For example, if someone says: "میرے ذمے فلاں کے دس روپے ہیں مگر پانچ", then five rupees will be obligatory on him. The exception is also mentioned in the Book of Allah. It is stated:
"فَلَبِثَ فِيهِمْ أَلْفَ سَنَةٍ إِلَّا خَمْسِينَ عَامًا "
"(And indeed We sent Noah to his people, and he remained among them a thousand years less fifty)."
Reference: Al-Ankabut 29/14
A majority of scholars have also permitted the exception for more than half of the amount.
✿ 10. For an exception in acknowledgment to be valid, the condition is that it must be connected with the words. If someone says: "میں نے اس کے سو روپے دینے ہیں" then remains silent for a time during which speaking was possible, and afterwards says: "کھوٹے" or "ادھار", then he will be liable for one hundred rupees in cash and in full. His statement after the silence will not be valid, because this is a trick through which he wants to nullify the binding right upon himself.
✿ 11. If someone sells something, or gifts it, or frees a slave or maidservant, and then later acknowledges that this thing actually belonged to someone else, then this statement will not be accepted. If the matter concerns a sale, the sale will not be annulled either, because this acknowledgment is in favor of another's right. However, he will be obliged to compensate the person whose right he acknowledged, because due to his disposition, the property has left the hands of the original owner.
✿ 12. It is correct to acknowledge a general thing, meaning acknowledging something in which the intention of the one acknowledging could be any one of two or more things. For example, if a person says: "میں نے فلاں شخص کو کوئی شے ادا کرنی ہے", then this acknowledgment will be valid, but then the person acknowledging will be asked to clarify this acknowledgment so that its fulfillment can be made obligatory upon him. If he refuses to clarify, he will be kept in custody until he provides the clarification, because this is his responsibility. If he says: "مجھے معلوم نہیں کہ میں نے کس چیز کا اقرار کیا ہے", he will be asked to take an oath and at least a fine will be imposed on him. If he dies before clarifying, no claim will be made from his heirs, even if he left behind wealth, because there is a possibility that what he acknowledged was not wealth.
✿ 13. If someone says: "میں نے فلاں شخص کے ایک ہزار روپے سے کم دینے ہیں", then the amount of the exception will be considered less than half.
✿ 14. If someone says: "اس دیوار سے لے کر اس دیوار تک فلاں کی زمین ہے", then walls will not be included in this acknowledgment, because he has acknowledged the middle area.
✿ 15. If someone acknowledges that "یہ درخت فلاں کے ہیں", then this acknowledgment will not apply to the land where these trees are present. Therefore, if these trees are removed, that person will not have the right to plant new trees there. Also, the owner of the land cannot uproot these trees, because it is evident that these trees were planted legally, for example, with the permission of the landowner. However, if the word garden is used in the acknowledgment, then it will include trees, buildings, and land, because the term garden applies to all these things.
✿ 16. If someone says: "میرے ذمے فلاں شخص کی کھجوریں ہیں جو تھیلی میں ہیں" or "چھری ہے جو کور میں ہے" or "کپڑا ہے جو رومال میں بندھا ہوا ہے", then this will only be an acknowledgment of the dates, the knife, and the clothes, not the bag, the cover, and the handkerchief. Similarly, whenever it is said while acknowledging something that it is inside another thing, the acknowledgment will only be of the first thing, because it is not necessary for the container and the contained to be owned by the same person, and acknowledgment with possibility is not obligatory.
✿ 17. If someone says: "یہ شے میرے اور فلاں شخص کے درمیان مشترک ہے", then to determine the partner's share, reference will be made to the one making the acknowledgment. According to some scholars, this means that the thing is equally divided between both, because the rule is that acknowledgment of absolute partnership requires equal shares. This is supported by Allah Almighty's statement:
"فَهُمْ شُرَكَاءُ فِي الثُّلُثِ ۚ "
"They will share one-third equally."
Reference: An-Nisa 4/12
✿ 18. When a person owes a right to someone, it becomes obligatory upon him to acknowledge that right and arrange for its fulfillment as soon as the need arises. Allah Almighty says:
"كُونُوا قَوَّامِينَ بِالْقِسْطِ شُهَدَاءَ لِلَّهِ وَلَوْ عَلَى أَنفُسِكُمْ "
"(O you who believe!) Stand firmly for justice, as witnesses to Allah, even if it be against yourselves."
Reference: An-Nisa 4/135
Also, Allah Almighty says:
"وَلْيُمْلِلِ الَّذِي عَلَيْهِ الْحَقُّ وَلْيَتَّقِ اللَّـهَ رَبَّهُ وَلَا يَبْخَسْ مِنْهُ شَيْئًا ۚ فَإِن كَانَ الَّذِي عَلَيْهِ الْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَن يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُ بِالْعَدْلِ ۚ "
"And let a scribe write [it] between them in justice. And let no scribe refuse to write as Allah has taught him. So let him write and let the one who has the obligation dictate. And let him fear Allah, his Lord, and not leave anything out of it. But if the one who has the obligation is of limited understanding or weak or unable to dictate himself, then let his guardian dictate in justice."
Reference: Al-Baqarah 2/282
Sheikh Ibn Qudamah, may Allah have mercy on him, writes in his book Al-Kafi:
"آیت میں وارد کلمہ"املال" اقرار کے معنی میں ہے اور اقرار کے سبب فیصلہ دینا واجب ہے کیونکہ نبی کریم صلی اللہ علیہ وسلم کا فرمان ہے:
"وَاغْدُ يَا أُنَيْسُ عَلَى امْرَأَةِ هَذَا فَإِنْ اعْتَرَفَتْ فَارْجُمْهَا"
"O Anis! Go to the wife of that person at dawn; if she confesses to adultery, then stone her."
Reference: Sahih al-Bukhari, Al-Wakala, Chapter on Al-Wakala in Hudood, Hadith 2314, 2315
It is also mentioned in the Hadith that the Prophet Muhammad (peace be upon him) ordered the stoning of Ma'iz Aslami (may Allah be pleased with him) and a woman from the tribe of Banu Ghamid due to their confession.
In summary, a ruling and judgment will be issued based on confession. The reason for this is that when it is obligatory to judge based on testimony, it is even more obligatory to judge based on confession, because compared to testimony, the likelihood of falsehood in confession is less.
All praise is due to Allah, the Lord of the Worlds, that this brief book has been completed. We pray to Allah Almighty that if there is any defect or error in this book, He forgives it, makes it beneficial for us and the honorable readers, and grants us all the ability to acquire beneficial knowledge and perform righteous deeds. Ameen!
This is what I have, and Allah knows best what is correct.
