. G F (cont.)

No right that is demonstrated by proof should ever be repelled. [If that were done,] the rights of Allah and His servants would be lost. The demonstration of truth, therefore, is not contingent upon any particular form of evidence . . . 3 Therefore, this hadith does not mean that if a person cannot present two witnesses or a witness and an oath for his claim that his claim will not then be listened to. He may be able to present some other direct proof other than witnesses. If these other forms of proof are convincing, the judge must decide in his favor even if he cannot present any witnesses to support his claim. The goal is the attainment of truth and its enactment. Witnesses are an important means of reaching that goal but they are not the only means. 1 Al-Mutlaq, p. J O. 2 Mahmassani, p. 1 76. 3 Jbn al-Qayyim, '/laam (Dar al-Jee!), vol. I , p. 90. Commentary on the Forty Hadith of al-Nawawi Circumstantial Evidence and Conclusive Presumption The judge may also look into any relevant qaraain' (U>I.)) or circumstantial or conclusive evidence. In other words, the judge may take into consideration the clear signs that lead to a definite conclusion, although they are not at the level that evidently prove a certain conclusion.2 According to al­ Sadlaan, the judge may take such into consideration when there is also clear evidence or admission or when clear evidence or admission is lacking. Indeed, a case may be decided solely on the basis of such circumstantial or indirect evidence.3 The validity of such evidence goes back to what ibn al-Qayyim was quoted as saying above: the goal is to reach the truth and no signs or bits of evidence that point to the truth should be ignored or discounted. Al-Sadlaan points out that this implies that the modern forms of criminal investigation can be used in making judicial conclusions in Islam. If such is not done, rights will be lost and injustice will be allowed to prevail. Any form of such injustice is opposed by Islam.4 The problem with such evidence is that jurists or judges may differ as to the strength of such evidence. The classic example is whether an unmarried woman who becomes pregnant should be punished for committing illegal sexual intercourse. In other words, is the fact that she is pregnant a strong enough sign that she is guilty of that crime? According to the Malikis, ibn Taimiya and ibn al-Qayyim, that is a sufficient sign to charge her with illegal sexual intercourse. The Malikis argue that if she were to claim that she was raped, her claim would not be accepted unless there were some signs that point to her truthfulness. If she had come bleeding or screaming for help earlier, that 1 Qaraain may be defined as signs that point to a conclusion that is not otherwise obvious and clear. They point to that conclusion because the sign usually accompanies a certain result or indicates a certain event. They may not be clear and conclusive but when added together, they may lead to a definite conclusion. An example from the Prophet's hadith is when a virgin woman is proposed to by a man, her silence is a sign of her approval. Although it is not an express statement of her approval, her remaining silent is usually because she has no objection. In the Majallah it talks about the "inference which amounts to the degree of certainty. Example: A is seen leaving an empty house with a blood-stained knife in his hand; B thereupon enters the house and finds C, who has just had his throat cut. There is no doubt that A is the murderer of C and no regard is given to the possibility that C killed himself." [See Mahmassani, p. 1 92; C. R. Tyser, D. G. Demetriades and Ismail Haqqi Effendi, trans., The Mejelle (Lahore: Law Publishing Company, 1 980), pp. 306-307, Article 174 1 .] The example they gave is somewhat simplistic and with today's more advanced criminal investigation and forensic methods, one may require more than what was stated in that example. In fact, Mahmassani (p. 197) added to the above example, "Such certainty undoubtedly depends upon the circumstances of the case, for it is possible that the frightened person leaving the house might be a relative of the victim, having hurried to the house upon hearing the screams of the victim, picked up the blood-stained knife . . . " 2 According to al-Sadlaan, all of the four schools of fiqh rely on qaraain in a number of decisions, although some of them warn against the use of qaraain or claim not to rely upon it. For a detailed discussion of the different views, see Saalih al-Sadlaan, al-Qaraain wa Dauraha Ji al-lthbaatfi al-Shareeah al-lslaamiyah (Riyadh: Daar Balansiyah, 1416 A.H.), pp. 39-60. 3 Al-Sadlaan, al-Qaraain, p. 6. 4 Al-Sadlaan, al-Qaraain, p. 1 1 . Hadith #33: "Were People to be Given . . . " would have been a sign that she was raped.