Source: Fiqhi Ahkam and Masail in the Light of Quran and Hadith, Issues of Qadha: Volume 02: Page 494
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah, and thereafter!
The literal meaning of Qadha is to strengthen something or to complete a task and be free from it.
Allah Almighty says:
"فَقَضَاهُنَّ سَبْعَ سَمَاوَاتٍ فِي يَوْمَيْنِ"
“Then Allah created the seven heavens in two days.”
Reference: 1]. Hum al-Sajdah 12:41.
Besides this, the Arabic language has many other meanings for the word Qadha. However, in Shariah and technical terms, Qadha means to clarify a Shariah ruling and make it obligatory upon someone and to decide disputes.
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: “Accepting the responsibility of Qadha (judge) is religiously obligatory and a cause of reward. It is among the most virtuous good deeds. The corruption in this matter has arisen because many people want to gain wealth and leadership through it.”
Reference: 2]. Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Chapter on Qadha 5/556.
The rulings of Qadha (judiciary) are established from the Book of Allah, the Sunnah of the Messenger of Allah ﷺ, and Ijma (consensus). Allah Almighty says:
"وَأَنِ احْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ"
“Judge between them by what Allah has revealed.”
Reference: 3]. Al-Ma'idah: 5/49.
He also said:
"يَا دَاوُودُ إِنَّا جَعَلْنَاكَ خَلِيفَةً فِي الْأَرْضِ فَاحْكُم بَيْنَ النَّاسِ بِالْحَقِّ"
“O Dawud! Indeed, We have made you a successor upon the earth, so judge between the people with justice.”
Reference: 4]. Sad: 38/26.
Qadha means to clarify the Shariah ruling, enforce it, and make decisions in disputes. The Messenger of Allah ﷺ himself made numerous judgments among the people and appointed judges in various parts of the Islamic state. After him, the Rightly Guided Caliphs, may Allah be pleased with them all, continued this practice.
The respected Sheikh, may Allah have mercy on him, further states about the judge: “He is a witness in terms of the effect of the judgment, a Mufti in terms of commanding and forbidding, and in terms of issuing a ruling and making it binding, he holds the position of authority.”
Reference: 5]. Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Chapter on Qadha 5/556.
In the religion of Islam, the ruling of a judge (Qazi) is a collective obligation (Fard Kifayah), because without it, the system of people cannot be maintained. Accordingly, Imam Ahmad, may Allah have mercy on him, states: "It is indispensable for people to have a ruler so that their rights are not lost."
Reference: 6]. Al-Mughni wal-Sharh al-Kabir: 11/374.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "The Messenger of Allah, peace and blessings be upon him, temporarily obligated a few travelers to appoint a leader (Amir) during their journey. This serves as a warning that having a judge in collective life is necessary and essential."
Reference: 7]. Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Chapter on Judiciary 5/555
Whoever is qualified to become a judge is obligated to offer his services to the government, provided that no other person is available for this role. Whoever possesses the strength and capability for this responsibility, this position is a cause of great reward for him, and whoever neglects this duty, it is a very dangerous matter for him.
It is obligatory upon the Muslim caliph to appoint a judge according to the circumstances and necessity, so that the rights of the people are not lost. Also, he should select such individuals for this position who are better in knowledge and piety. If he is not aware of capable people, he should inquire from the people and seek advice.
The responsibility of the judge is to make decisions among the people with the utmost justice and fairness. The caliph should set the judge's salary from the public treasury (Bait al-Mal) in such a way that he becomes free from worry regarding the fulfillment of his living needs. The Rightly Guided Caliphs, may Allah be pleased with them all, used to give those holding government positions a stipend from the public treasury sufficient for their living necessities.
The eligibility and capability of a judge may vary according to different times and circumstances, because in matters where Shariah has not set any specific limits, it depends on the current conditions and customs.
In this era, the Ministry of Justice of the Kingdom of Saudi Arabia has implemented a system under which judges perform their duties in their respective subordinate areas, and their authorities have also been defined. Therefore, it is necessary to keep these rules and regulations in mind, as they involve the rectification of matters and the determination of authorities. Thus, when this system is not contrary to the Book and Sunnah, it is obligatory to follow it.
Essential Qualities for a Judge
A judge must, as far as possible, possess nine qualities, which are as follows:
① Must be accountable (Mukallaf)
That is, sane and adult, because a non-accountable person is under someone's guardianship and therefore is not eligible to be a ruler.
② Must be male
The Messenger of Allah, peace be upon him, said:
"لَنْ يُفْلِحَ قَوْمٌ وَلَّوْا أَمْرَهُمْ امْرَأَةً"
“A nation that appoints a woman as their ruler will never succeed.”
Reference: 8]. Sahih al-Bukhari, Al-Maghazi, Chapter: The Book of the Prophet’s Letters to Khosrow and Caesar, Hadith 4425.
③ Must be free
The reason for this quality is that a slave is always busy fulfilling the rights of his master.
④ Be a Muslim
Because entering Islam is a condition for a person's righteousness, honesty, and integrity to be considered valid. Also, in an Islamic society, it is desired to keep a non-Muslim subordinate and not give them the same respect as Muslims, while governance or the position of a judge is a cause of honor and respect.
⑤ Be just
That is, be righteous, noble, and honest. It is absolutely not permissible to appoint a sinful person to the position of a judge, because Allah Almighty says:
"يَا أَيُّهَا الَّذِينَ آَمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَأٍ فَتَبَيَّنُوا"
“O Muslims! If a sinful person gives you news, then verify it carefully.”
Reference: 9]. Al-Hujurat:6.49.
When the news of a sinful person is not accepted, then his judgment will, by way of priority, also not be accepted.
⑥ Have the power of hearing
Because if deaf, he will not be able to hear the statements of both parties.
⑦ Have the power of sight
Because a blind person will not be able to distinguish between the plaintiff and the defendant.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "The requirement of qiyas (analogical reasoning) is that it can be made a judge, just as its testimony can be accepted, because it only faces difficulty in recognizing the identity of the disputing party, and here there is no need for that; rather, it judges according to the stated characteristics, as Prophet Dawud (peace be upon him) judged between two angels."
Reference: 10].. Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Chapter on Judiciary 5/558.
⑧ Must have the ability to speak
Because it is not possible to give a judgment verbally for a mute person. As for gestures, not all people understand them.
⑨ Must have the ability of Ijtihad
The judge should be a person who can perform ijtihad. Even if he is a mujtahid in his own sect in which he follows one of the Imams, it is still necessary that he knows the dominant and weak opinions in the religion.
This condition has been practiced since ancient times. If it were not so, the rulings of the people would remain suspended.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "These conditions should be considered as much as possible. The one who has more knowledge, experience, and understanding should be preferred over others. The statement of Imam Ahmad, may Allah have mercy on him, also indicates that among two sinners, the one who is more beneficial and causes less harm should be appointed as the wali (leader)."
Reference: 11]. A'lam al-Muwaqqi'in:4/186. Bighayr Sir
A just person and one who has knowledge of the religion can also be appointed as a Qazi or person in charge; otherwise, many affairs of the people will remain suspended.
Ibn Qayyim, may Allah have mercy on him, while mentioning the categories of muftis, says: "A mujtahid is one who has knowledge of the Book and Sunnah. If a mujtahid follows someone else in certain matters, this act will not contradict his being a mujtahid. Every mujtahid and imam has followed a scholar greater than himself in some issues."
Reference: 12]. Al-Fatawa al-Kubra al-Ikhtiyarat al-Ilmiyyah, Bab al-Qada 6/556.
Description of the Qualities of a Qazi
In this chapter, it is intended to describe those qualities and virtues which a Qazi must possess.
Imam Ahmad, may Allah have mercy on him, says: "The highest and best quality in a judge is that he does not become angry and does not hold enmity or hatred towards any party."
Imam Ibn Qayyim, may Allah have mercy on him, says: "It is necessary for a judge to know three things. Without them, the judge's decision is not correct, namely the knowledge of evidences, causes, and testimonies. Because from the evidence, he will know the Shariah ruling; from the causes, he will know whether this ruling applies to the case under consideration or not; and from the testimonies, it will be possible to decide in case of disagreement. If there is a mistake in any one of these three, then an error will occur in making the decision."
Reference: 13]. Bada'i al-Fawa'id by Ibn al-Qayyim: 4/12.
It is necessary for a judge not to be harsh-tempered, but to be strong in every respect so that the oppressor does not harbor any false hope from him. Similarly, he should be gentle in nature. He should not show weakness in his decisions so that the rightful person is not intimidated by him.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, says: "Two things are fundamental pillars for governance, namely power and trustworthiness. Therefore, a judge should be patient so that he does not become angry at the statement of any party, which would hinder delivering a correct judgment. The adornment and beauty of knowledge is patience, and its opposite is being emotional, hasty, and unstable. A judge should be knowledgeable, calm-tempered, and courageous so that due to haste and passion, he does not issue a ruling unworthy of him. He should be intelligent and perceptive so that no party can deceive him. He should be chaste and pure, meaning he protects himself from forbidden acts. He should be insightful and aware of the decisions of judges before him. The judge's place and position, i.e., the court, should preferably be in the center of the city so that all city residents can easily reach him. There is no harm in making the mosque the place of the court; accordingly, the Rightly Guided Caliphs, Sayyiduna Umar, may Allah be pleased with him, Uthman, may Allah be pleased with him, and Ali, may Allah be pleased with him, used to make judgments among people in the mosque. It is also necessary for the judge to maintain equality and justice in the tone of conversation, choice of words, and seating arrangements with both parties."
It is narrated from Sayyiduna Ibn Zubair رضي الله تعالى عنه:
"قضى رسول الله صلى الله عليه وسلم أن الخصمين يقعدان بين يدي الحاكم"
“The Messenger of Allah صلى الله عليه وسلم ordered that both the claimant and the defendant be seated before the judge.”
Reference: 14]. (Weak) Sunan Abi Dawood, Al-Qada, Chapter: How the disputants should be seated, Hadith: 3588. Also Musnad Ahmad 4/4.
It is obligatory upon the judge to be just and fair in seating both parties before him, paying attention to them, and conversing with them.
Imam Ibn Qayyim رحمه الله says: “It is forbidden to seat one of the two parties in a distinguished place, or to give more attention to one, or to stand to receive one party, or to consult with one party, so that this does not cause disappointment to the other party. Also, this will have the effect that the party considered inferior will have their arguments regarded as weak and their speech will falter. This situation is regrettable.”
It is forbidden for a judge to whisper to one party during the trial, or teach them arguments to win the case, or entertain them, or instruct them on how to make a claim, or give them any lesson regarding it. However, if the plaintiff omits any essential point in the claim, the judge may remind them.
The judge should seek cooperation from scholars for advice in difficult situations. If the complete situation of the case is understood, then the judge should give a verdict; otherwise, the decision should be postponed until the situation becomes clear.
It is forbidden for a judge to give a verdict in a state of anger, because in a hadith, the Messenger of Allah, peace be upon him, said:
"لاَ يَقْضِيَنَّ حَكَمٌ بَيْنَ اثْنَيْنِ وَهُوَ غَضْبَانُ"
“No ruler should judge between two people while angry.”
Reference: 15]. Sahih al-Bukhari, Al-Ahkam, Chapter: Is it permissible for a judge to judge or give a fatwa while angry? Hadith 7158. And Sahih Muslim, Al-Aqdiyah, The Dislike of a Judge Judging While Angry, Hadith 1717.
The reason for this is that in a state of anger, a person’s heart and mind experience pressure and tension, and anger prevents perfect understanding. Anger clouds the vision of justice and causes one to lose the path of knowledge and wisdom.
Considering the state of anger, all those conditions are included in the same ruling when a judge is mentally disturbed and stressed, is extremely hungry or thirsty, is afflicted with severe grief, is drowsy or sleepy, is troubled by extreme cold or heat, or feels the need to relieve himself. All these situations occupy the judge’s mind and prevent him from reaching a positive conclusion, so their ruling is the same as that of anger.
It is forbidden for a judge to accept a bribe, because of the narration of Ibn Umar, may Allah be pleased with him:
"عَنِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ : لَعَنَ اللَّهُ الرَّاشِيَ وَالْمُرْتَشِيَ "
“The Messenger of Allah, peace and blessings be upon him, cursed both the one who gives a bribe and the one who takes it.”
Reference: 16]. Jami’ at-Tirmidhi, Al-Ahkam, chapter on what has been mentioned about the briber and the bribed in judgment, hadith 1337.
There are two types of bribes:
① To receive from one party so that an unjust and illegitimate decision can be made in their favor.
② To demand a bribe from a party in order to give them their rightful due.
In both cases, demanding a bribe is a great injustice.
It is forbidden for a judge to accept a gift from a person who did not give gifts to him before he assumed the position of judge. The Messenger of Allah, peace be upon him, said:
"هَدَايَا الْعُمَّالِ غُلُولٌ"
"Accepting gifts from government officials is treachery."
Reference: 17]. Musnad Ahmad: 5/425.
The reason is that accepting a gift from such a person, who is not accustomed to giving gifts, leads to making a decision in their favor.
It is not appropriate for a judge to personally buy and sell goods in the market, because in this way shopkeepers may give him discounts on goods to create affection and connection, which can later become a means of obtaining unlawful benefit. However, the judge should conduct buying and selling through an agent who is not known to the general public.
A judge should neither rule in his own favor nor decide a case in which his own testimony is not legally acceptable, such as cases involving his father, children, wife, etc., because there is a possibility of bias in such situations. Similarly, he should not rule against his enemy, as in such circumstances there is a risk of false accusation and blame. Instead, such cases should be transferred to another judge. It is narrated that Sayyiduna Umar رضي الله تعالى عنه had his and Hazrat Ubayy bin Ka'b رضي الله تعالى عنه's case decided by Zaid bin Thabit رضي الله تعالى عنه. Sayyiduna Ali رضي الله تعالى عنه filed a claim against an Iraqi person in the court of Qadi Shurayh. Sayyiduna Uthman رضي الله تعالى عنه had the case of Hazrat Talha رضي الله تعالى عنه decided by Hazrat Jubayr bin Mut'im رضي الله تعالى عنه.
It is recommended for the judge to first resolve the cases of those whose situations require immediate decisions, such as:
◈ Cases of prisoners
◈ Cases of orphans
◈ Cases of mentally disabled individuals
Then he should decide on endowments and wills for which there is no responsible person.
If the judge's decision contradicts the rulings of the Book and Sunnah, or goes against definitive consensus, it will not be acceptable.
A brief look at these etiquettes of the judge makes it clear how much importance Islam places on the judge being just, and how highly the position of judiciary is regarded in Islam, to the extent that worldly systems are unable to present an example of it.
Allah Almighty has spoken the truth:
"أَفَحُكْمَ الْجَاهِلِيَّةِ يَبْغُونَ ۚ وَمَنْ أَحْسَنُ مِنَ اللَّهِ حُكْمًا لِّقَوْمٍ يُوقِنُونَ "
“Do they then desire the judgment of ignorance? And who is better in judgment than Allah for a people who have firm faith?”
Reference: 18]Al-Ma'idah:5.50.
May Allah curse those who reject this divine judgment and adopt the satanic law. Their condition is exactly as described in Allah Almighty’s statement:
"أَلَمْ تَرَ إِلَى الَّذِينَ بَدَّلُوا نِعْمَتَ اللَّهِ كُفْرًا وَأَحَلُّوا قَوْمَهُمْ دَارَ الْبَوَارِ (28) جَهَنَّمَ يَصْلَوْنَهَا ۖ وَبِئْسَ الْقَرَارُ"
“Have you not looked at those who were ungrateful for the favor of Allah and brought their people to the brink of destruction, that is, to Hell, into which they will all enter, and it is the worst place of settlement.”
Reference: 19]. Ibrahim:14.28.29.
Explanation of the Method of Judgment
When both parties are present in the judge's court, he should seat them before him and ask, "Who among you is the claimant?" Or the judge may wait until the claimant himself begins to speak.
When a person makes a claim, the judge should listen carefully to his claim. When the claimant properly presents his claim, the judge should ask the defendant, "What is your position regarding this claim?"
◈ If the defendant accepts the claim as true and correct, the judge should decide in favor of the plaintiff based on the truth of the claim.
◈ If the defendant denies the correctness of the claim, the judge should ask the plaintiff for witnesses so that the plaintiff can prove his claim and the judge can decide in light of this testimony.
◈ If the plaintiff presents testimony, the judge should listen to it.
◈ If the testimony is acceptable, the judge should decide in favor of the plaintiff.
The judge should not decide solely based on his own knowledge and personal information, because this may lead to accusations of bias against him.
Allama Ibn Qayyim, may Allah have mercy on him, says: "The reason for prohibition is that it can lead to wrong decisions, so the judge may give a wrong decision and say that I decided based on my own knowledge."
Later, the Imam states: "Our master Abu Bakr, may Allah be pleased with him, Umar, may Allah be pleased with him, Abdur Rahman bin Awf, may Allah be pleased with him, and Muawiyah, may Allah be pleased with him, used to forbid doing so. None of the noble Companions, may Allah be pleased with them all, opposed this decision of theirs. The chief of judges, our master Muhammad, the Messenger of Allah, peace and blessings be upon him, had certain knowledge regarding the hypocrites that their blood and wealth were permissible, but he did not judge their matters based on his knowledge; rather, he based his judgments on evidence and testimonies, even though the personality of the Prophet, peace and blessings be upon him, was above any kind of accusation or doubt in the sight of Allah, His angels, and His servants."
Reference: 20]. A'lam al-Muwaqqi'in: 3/129 and Al-Tariq al-Hikmah by Ibn al-Qayyim, pp. 263-264.
The mentioned Imam further writes: "However, it is permissible for the judge to base his decision on information and reports that are continuous and well-known, in which the judge and others are also involved, because these are clear evidences and indications that the judge cannot be accused of any kind of falsehood, and a decision based on this is a reasoned judgment."
Reference: 21]. Al-Tiraq al-Hikmah by Ibn al-Qayyim, pp. 265-267.
If the plaintiff says: I have no witness, the judge should inform him that the other party, i.e., the defendant, is under oath. Accordingly, there is a narration in Sahih Muslim:
"جَاءَ رَجُلٌ مِنْ حَضْرَمَوْتَ وَرَجُلٌ مِنْ كِنْدَةَ إِلَى النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، فَقَالَ الْحَضْرَمِيُّ: يَا رَسُولَ اللهِ، إِنَّ هَذَا قَدْ غَلَبَنِي عَلَى أَرْضٍ لِي كَانَتْ لِأَبِي، فَقَالَ الْكِنْدِيُّ: هِيَ أَرْضِي فِي يَدِي أَزْرَعُهَا لَيْسَ لَهُ فِيهَا حَقٌّ، فَقَالَ رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ لِلْحَضْرَمِيِّ: «أَلَكَ بَيِّنَةٌ؟» قَالَ: لَا، قَالَ: «فَلَكَ يَمِينُهُ»"
Two men came to the Prophet ﷺ with their dispute. One was a Hadrami and the other was a Kindi. The Hadrami said: "O Messenger of Allah ﷺ! He has occupied my land which belonged to my father." The Kindi said: "That land is mine and in my possession; I cultivate it, and he has no right in it." The Prophet ﷺ asked the Hadrami: "Do you have any witness?" He said: "No!" The Prophet ﷺ said: "Then the oath is upon you." Meaning the Kindi will take the oath.
Reference: 22]. Sahih Muslim Al-Iman, Chapter: Warning to one who unjustly cuts off the right of a Muslim, Hadith: 139.
Imam Ibn Qayyim, may Allah have mercy on him, says: "From this narration, the rule and principle emerges that the responsibility of taking the oath lies upon the defendant, provided that the claimant cannot present any strong evidence in support of his claim."
Reference: 23]. Al-Tariq Al-Hikmah by Ibn Qayyim, p. 178.
When the claimant demands an oath from the opposing party, i.e., the defendant, the judge should take an oath from him. When he takes the oath, the judge will issue a decision in his favor and let him go. However, the defendant's oath will only be accepted as valid when it is made in clear and explicit words and upon the claimant's demand, because the matter about which the oath is to be taken concerns the claimant's right; therefore, without his demand, the oath will not be valid.
If the defendant refuses to take the oath, a decision will be made against him on that basis, because the defendant's refusal to take the oath is evidence of the claimant's truthfulness. This is the opinion of a group of scholars, including Sayyiduna Uthman, may Allah be pleased with him. Another group's opinion is that when the defendant refuses to take the oath, the claimant must take the oath.
When the defendant takes an oath, the judge will issue a decision in his favor. If, after the decision has been issued, the plaintiff brings a witness to prove the truth of his claim, then it will be examined whether the plaintiff had previously said that he had no witness; in that case, his witness will not be acceptable because he has been proven false in his earlier statement. And if he had not said this before, then his testimony will be admissible, and if it is strong, the judge will revise his previous decision and rule in his favor.
The plaintiff's right does not end with the defendant taking an oath, because taking an oath does not prove the claim to be false. This oath is only to end the dispute; it does not terminate the rightful claimant's right.
Similarly, if the claimant says: I do not know if I have any witness, and later finds a witness, then the testimony will be heard and a decision will be made in light of it, because in this case he has not deviated from his initial statement. And Allah knows best.
Conditions for the Validity of a Claim
One condition for a claim to be valid is that it should be clear and specific. For example, if it concerns a debt on a deceased person, the claim should mention the death, specify the nature and amount of the debt, and provide all information that clarifies the situation of the claim, because the judge's decision depends on this written statement. This is why the Messenger of Allah, peace and blessings be upon him, said:
"وَأَنَا أَقْضِي بَيْنَكُمْ عَلَى نَحْوِ مَا أَسْمَعُ"
“I will judge among you based on the statements I hear.”
Reference: 24]. Sahih al-Bukhari, Al-Hiyal, Chapter 10, Hadith 6967; Sahih Muslim, Al-Aqsa, Chapter on the Explanation of the Judge’s Ruling Not Changing the Inner Matter, Hadith 1713; Sunan al-Nasa’i, Adab al-Qudat, Chapter on What Decides the Judgment, Hadith 5424. The wording is his.
This hadith indicates that it is necessary to present the claim in a clear form so that the reality of the matter becomes well understood before the judge.
For the validity of the claim, it is also essential that the object related to the claim is known and definite, not unknown, so that when the claim is proven, that object can be obligated. However, in some cases, a claim regarding an unknown object will be accepted as valid, for example, bequeathing a portion of one's wealth or one of one's slaves, which is designated as a rightful dowry, etc.
The claim must be clear and explicit. It is not sufficient to merely say that so-and-so has my such-and-such item; it is also necessary to state that I demand its return. Moreover, the item claimed must actually exist. Therefore, a claim for the demand of a loan cannot be made if the mutually agreed period for its repayment is still remaining, because it is not correct to demand it before the stipulated time, nor can any restriction be imposed on the defendant on this basis.
Another condition for the validity of a claim is that there should be no clear indication that it is false. For example, if a person claims that so-and-so committed murder or theft twenty years ago, while the defendant is less than twenty years old. In such a case, reason does not accept this claim as true, and therefore it will not be accepted.
If someone claims a contract of sale or lease, it is necessary for the validity of the claim that the conditions under which the contract was made are also mentioned in the statement, because people impose various conditions in contracts, and sometimes due to a certain condition, the judge does not consider the contract valid.
If someone claims inheritance, it is necessary for them to state the cause of the inheritance, because the causes of inheritance are multiple.
Reference: 25]. The basic causes of inheritance are three: lineage, marriage, and allegiance; the details of each have been covered in the chapters on inheritance. (Saarim)
Therefore, specification is necessary.For the validity of the claim, it is necessary that the thing about which the claim is made is specified, and that the thing is present in the same session or the same city so that there is no confusion about it. If the item is distant or absent, then its characteristics and signs must be mentioned so that it can be distinguished from other items.
Conditions for the Acceptance of a Witness
For a witness to be acceptable, it is necessary that he be a righteous and honest person. Allah Almighty says:
"وَأَشْهِدُوا ذَوَيْ عَدْلٍ مِنْكُمْ "
“And take two just men as witnesses from among you.”
Reference: 26]. At-Talaq: 2/65.
And the Divine command is:
"مِمَّنْ تَرْضَوْنَ مِنْ الشُّهَدَاءِ"
“Whom you choose as witnesses.”
Reference: 27]. Al-Baqarah: 2/282.
Also, Allah Almighty says:
"يَا أَيُّهَا الَّذِينَ آَمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَأٍ فَتَبَيَّنُوا"
“O you who believe! If a wicked person brings you news, verify it carefully.”
Reference: 28]. Al-Hujurat: 6/49.
Among the jurists, there is a difference of opinion whether the attribute of justice (ʿadālah) is valid both outwardly and inwardly, or if outward appearance alone is sufficient. There are two opinions on this matter. The clearer opinion is that outward justice alone is valid, because the Messenger of Allah, peace be upon him, accepted the testimony of a Bedouin man, and also the statement of Sayyiduna Umar, may Allah be pleased with him, is: (الْمُسْلِمُونَ عُدُولٌ) “All Muslims are just.”
Reference: 29]. As-Sunan al-Kubra by Al-Bayhaqi: 10/155.
It is obligatory upon the judge to issue a ruling based on the testimony of a just person, however, if there is material against him, then it is not permissible to do so.
If the judge does not know whether a witness is just, he should obtain information from a trustworthy person who knows his circumstances due to living with him, dealing with him in some matter, or residing in his neighborhood. In the presence of Sayyiduna Umar رضي الله تعالى عنه, a person spoke praise about someone, so the Prophet صلى الله عليه وسلم asked him: Are you his neighbor? He said: No. Then he asked: Have you traveled with him? He said: No. Then the Commander of the Faithful asked: Have you transacted dirhams and dinars with him? He said: No. Then the Prophet صلى الله عليه وسلم said: Then you know nothing about him.
If, during the investigation of a witness, some people consider him reliable and others consider him unreliable, then his testimony will not be accepted, because the information of the critic is deeper and more weighty than that of the one who praises. The one who praises looks at the apparent conditions, while the critic's view also encompasses the hidden conditions of the person. The critic reveals the presence of a fault or bad trait, whereas the one who praises only denies faults. The rule is that the affirmative takes precedence over the negative.
If the defendant alone praises the witness or declares him truthful, then this is sufficient for the witness to be considered reliable, because considering the witness reliable is equivalent to acknowledging the plaintiff's right, and therefore, a decision will be made against him based on his admission.
When the judge becomes aware of the reliability of the plaintiff's witness, he can issue a verdict based on that, and no further investigation is necessary. Similarly, if he is not aware of the witness's reliability, he cannot issue a verdict based on that. If he has doubts about the witnesses, he should ask them when and how they obtained this information.
Imam Ibn Qayyim, may Allah have mercy on him, says: "It is necessary for the judge to do this. If he does not, he will be sinful. Two men came to Sayyiduna Ali, may Allah be pleased with him, and testified that a certain person had stolen. When he, may Allah be pleased with him, doubted them, he said: Cut off this person's hand. Hearing this, they fled."
Reference: 30]. Al-Tiraq al-Hikmah by Ibn al-Qayyim, pp. 68, 99, 100.
If the opposing party declares the witnesses unreliable, they will be required to provide proof of their unreliability, because in the hadith it is stated:
"البينة على المدعي"
"Presenting witnesses is the responsibility of the claimant."
Reference: 31]. Jami' at-Tirmidhi Al-Ahkam, Chapter on the Hadith Regarding the Burden of Proof on the Claimant, Hadith 1341.
Therefore, he will be given a period of three days. If he does not present witnesses in favor of his objection, the decision will be made against him, because failing to present witnesses within the specified time in favor of the objection is sufficient to prove his falsehood.
If the judge is not aware of the circumstances of the witnesses' lives, he should ask the claimant for their character references so that it can be proven that they are just and honest, and a decision can be made based on their testimony. The testimony of two people is required for the character reference of a person, although according to some, the testimony of one person is also sufficient for character reference.
If one party is absent from the court and is at such a distance that the ruling of shortening the prayer applies, the judge can pass a judgment against them, provided the evidence is against them. It is narrated in a hadith that Hind, the wife of Abu Sufyan (may Allah be pleased with her), said: O Messenger of Allah (peace be upon him)! Abu Sufyan (may Allah be pleased with him) is very frugal; he does not give me enough for food and expenses that would suffice for me and my children. The Prophet (peace be upon him) said: Then you may take as much wealth in his absence as will suffice for you and your children.
Reference: 32]. Sahih al-Bukhari, Transactions, Chapter: If a man does not spend, Hadith: 5364. And Sahih Muslim, Al-Qada, Chapter: Judgment of this, Hadith: 1714.
From this narration, it is established that a judgment can be passed against an absent person. Then, when they appear, their evidence will be heard, because the obstacle will have been removed.
When it is decided that the right belongs to a certain person, this does not end the claim that the rightful owner should be paid, or that the defendant has been discharged from the obligation, or that some other situation has arisen which extinguishes the right.
In giving a judgment against an absent person, the condition is that they are outside the jurisdiction of the judge. If they are within the judge's jurisdiction and there is no one to decide there, i.e., a deputy judge, then the judge should issue a written order to a person who can decide between the two. If this is not possible, then an order should be issued for reconciliation between them by any person. If this also cannot be done, then the plaintiff should be told to prove their claim. If they prove it, the defendant will be summoned, no matter how far away they are.
Imam Ahmad, may Allah have mercy on him, stated: "The scholars of Madinah have the practice of giving judgment against an absent party." And he said: "This stance is good."
Allama Zarqashi, may Allah have mercy on him, said: "Imam Ahmad, may Allah have mercy on him, did not consider hearing a claim and testimony as incorrect." Then he mentioned the statements of the scholars of Madinah and the scholars of Iraq, from which it is evident that according to them there is consensus between the scholars of both cities on this issue.
Claims will be heard even against one who is not legally responsible, and a judgment will be given. The evidence for this is the narration of Hind, may Allah be pleased with her.
After the judgment has been made, when that person becomes legally responsible, evidence and testimonies can be presented against him.
Statement on Division Among the Shareholders
The issue of division among the shareholders is established from the Book of Allah, the Sunnah of the Messenger of Allah, peace and blessings be upon him, and consensus.
Allah Almighty says:
"وَنَبِّئْهُمْ أَنَّ الْمَاءَ قِسْمَةٌ بَيْنَهُمْ ۖ "
"And inform them that indeed the water is shared between them and the she-camel."
Reference: 33]Al-Qamar: 54-28.
Also, the Divine command is:
"وَإِذَا حَضَرَ الْقِسْمَةَ أُولُو الْقُرْبَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينُ فَارْزُقُوهُم مِّنْهُ وَقُولُوا لَهُمْ قَوْلًا مَّعْرُوفًا"
“And when relatives, orphans, and the needy come at the time of distribution, then give them something out of it and speak to them kindly.”
Reference: 34]. An-Nisa: 4/8.
The Prophet ﷺ said:
"لشُّفْعَةُ فِيمَا لَمْ يُقْسَمْ"
“The right of preemption is in that which has not been divided.”
Reference: 35]. Mentioned in Bukhari in the translation of the chapter on preemption in undivided property. Yara Mawaared al-Dhaman (Ibn Hibban) 4/38,39. Hadith 1152.
Additionally, the hadith states that the Messenger of Allah ﷺ used to distribute the spoils of war among the Muslims. The consensus on this issue has been reported from several scholars. Furthermore, human need also demands this issue, because the rights of those who have a claim on a common thing cannot be fulfilled without division.
Division means that in a common thing, the share of each person is separated individually.
There are two types of division:
① Division by mutual consent
② Division by force
