I. J (cont.)

Therefore, if one person destroys the property of another and a dispute arises as to the amount thereof, the statement of the person causing such destruction shall be heard and the burden of proof as to any amount in excess of the testified amount is upon the owner of the property.2 The word that the Prophet (peace be upon him) used in this hadith which was translated as "burden of proof' is bayyinah, which implies something that makes a matter clear and evident. According to al-Bugha and Mistu, there is a consensus among the scholars that the meaning of bayyinah is witnesses.3 Indeed, another hadith from Sahih Muslim states that there was a dispute between one Muslim and another concerning a well and the Prophet (peace be upon him) told the claimant, JJ - · r1 ',11' t '• ෈J :..i ౑౒ "Your two witnesses or his oath." There is no question that witnesses play a very important role in the courts of Islam. Witnesses are people who were present and saw what took place. They are the proof that what the person is claiming is true. Due to its importance, this topic of witnesses shall be discussed in some detail here. However, the exact meaning of bayyinah will be returned to in order to determine if witnesses is all this hadith referring to. 1 Cf., Muwafiq al-Deen Abdullah ibn Qudaamah, al-Mughni (Beirut: Daar al-Filer, 1 984), vol. 1 2, p. 163. 2 Quoted in S. Mahmassani, Falsafat al-Tashri ft al-Islam: The Philosophy of Jurisprudence in Islam (Leiden: E. J. Brill, 196 1 ), p. 1 7 1 . 3 Al-Bugha and Mistu, p . 244. Sultaan (p. 279) gives the same interpretation but he does not say that there is a consensus on this point. Commentary on the Forty Hadith of al-Nawawi The Criteria for Being an Acceptable Witness Not everyone is qualified to be a witness. If anyone's witness were accepted, then it would be easy for fabricated or false testimony to be accepted in a court of law. This would defeat the purpose of attaining the truth and fulfilling everyone's rights. Therefore, Islam has laid down certain criteria that a person must meet to be considered an acceptable witness. These are: 1 (1) The witness must be sane and competent. (2) In general, the witness must be an adult. There are some exceptions to this wherein some scholars will allow the testimony of children. (3) The witness must be a Muslim. In general, non-Muslims are not acceptable as witnesses unless it be in a case dealing with non-Muslims. (4) The witness must be of sound memory. If someone is known to be senile or not able to recount what has occurred in the past, then his witness will not be considered acceptable. (5) The witness must be a person of integrity and honesty. This, above all, implies that he is a good Muslim and fulfills his religious obligations while remaining away from the blatantly forbidden deeds. Even if a witness meets the above requirements, his witness will not be accepted if there is a clear conflict of interest. For example, if the witness is closely related to either disputant, an open opponent to one of the parties or he is to gain from the outcome of the trial, his witness will not be considered acceptable. The Importance of Giving One's Testimony Once again, the attainment of truth and justice is emphasized in Islam. One of the most important means by which that is achieved is by people presenting what they know concerning issues of dispute. Therefore, it is very important that people offer their testimony and offer their testimony truthfully when called upon to do so. For this reason, appearing as witnesses and offering testimony is considered a communal obligation in Islamif sufficient people fulfill this role, the others are absolved of responsibility. It can become an individual obligation if a particular person is the only one qualified to fulfill this responsibility.2 Allah says in the Quran, 1; ,, , ,,,. ... ,, _ .... ,,,, - ,J ""' ச .... / /(_ l_y/ 0 bl .\1 \ y౐ '1) ; "And the witnesses should not refuse when they are called" (al-Baqara 282). In bis commentary on this verse, ibn Katheer points out that according to 1 Cf., al-Mutlaq, pp. 1 51 8. 2 See Abdullah al-Zibn, "Hukm al-Shahaadah: Tahamalan wa Ada-an," Majallah al-Bahooth al­ lslaamiyah (No. 7, Rajab-Shawaal 1403), pp. 249-254. Hadith #33: "Were People to be Given . . . " Qataada and others, the meaning of this verse is that when one is asked to be a witness to something, he should not refuse to witness it. The majority of the scholars state that it refers to giving one's testimony. In other words, if one has agreed to witness something, then he cannot refuse to later give his testimony when asked to do so.