UNIVERSITY OF THE GAMBIA

MAT NO: 21727002

ISLAMIC LAW OF EVIDENCE
Q1.

Retraction from witness after an execution has been passed Islamic school of taught argue that the
person who retracted should be punished on top of that he entitled to pay one fourth of blood money
in order to compensate the family. While retraction from confession has not created room for the
payment of blood money.

Retraction from confession can be admissible both inside and outside of the court that is judicial and
extra-judicial while retraction form witness is only admissible when made in court during the course
of proceedings

Retraction from confession is not admissible in civil cases only with hadde cases while retraction from
witness is accepted and admissible both in civil and criminal cases

Q2.

According to the Hanafi and Shafi’i schools In the event she fails to adduce the witnesses or
that she was not able to bring sufficient evidence, then the husband is to be required to swear.
Therefore, if he swears, the case should be dismissed accordingly, but if he fails to swear,
adjudication for divorce is going to be passed against the husband. A refusal is a conclusive
presumption of his admission. However, going by the question in hand the cadi was in relied
strictly on the Shafi’I school of thought in order to adjudicate his judgement

The Shafi’is in this respect maintain that, the oath is reversible to the plaintiff, and if he
swears, adjudication of divorce is to be passed on the strength of the refusal of the defendant
to swear, together with the plaintiff’s oath.

In the Maliki and Hambali schools, no oath be administered to the defendant if he denies the
allegation and if the woman fails to produce witnesses. This simply means the man will not
be compel to take an oath if the woman fails to adduce competent witnesses. But if she
adduce witnesses either one man or one man plus two female competent witnesses or even
two female witnesses, in the light of these school of thoughts, the defendant should be asked
to perform oath, that this particular evidence is an allegation. If the defendant perform an
oath, the case is dismissed, but if he fails to swear, he is to be imprisoned for a year, during
which if he agrees to swear as required, he will be set free and the case is to be dismissed.

Q3.
I will address the first issue based on rada’ah (suckling) and highlight views of the various
scholars on this vary issue. The evidence as regards rada’ah (suckling) occurs when two
people of different sexes were suckled during their childhood by one woman and these two
persons married without knowing the fact that they had being suckled by one woman.
According to Islamic law, they are regarded as brothers and sisters. In such a case, the
evidence of two men as to confirm the rada’a is admissible, under Maliki School and no less
than four women under the Shafi’I school. Hambilis says either two women or one woman.
Hanafis say the evidence of woman is not acceptable, it should either be two men, or one
man plus two women. Mrs C managing to bring one male two female witnesses will suffice
under Hanafi school of thought

Second issues is whether Mr. A’s claim on enmity as to criticize the credibility of one of the
witness will hold. The general rule is that no shahada will be awarded to people who have
tuhuma (suspicious) According to the various schools of thought sates that if enmity exist
between persons and that enmity is as a result of religious misunderstanding then that enmity
will suffice. Meaning the witness cannot be bar to testimony. But if this enmity was as a result
of worldly affairs, then it will be a bar to one of them to testify against another. In light of this
explanation it can be concluded that the enmity was as a result of Islamic matters hence bank
interest is prohibited in Islam. In conclusion the claim made by Mr B as to the credibility of
one of the witness hold no concrete ground as a result the witness can testify.

Third issue is whether the tazkia (purgation) performed by the judge is valid and free from
mistakes.
The judges can undergo with tazkia (purgation) where the character of a witness is put to
question by the defendant. The judge should write secretly to one or more male persons, in
whom he has confidence to be of good reputation and character. In light of this the court has
erred to put this into consideration by allowing two female witnesses Isatou and Fatoumatta
to perform the tazkia without following the due procedure as stipulated by the rule governing
tazkia (purgation). This is a big mistake that the judge fails to realize.

Fourth issues is whether the retraction of one of the two female witnesses has an effect with
regards to the judgement. According to Hanafi’s the evidence of woman is not acceptable, it
should either be two men, or one man plus two women. Retraction of one of the two female
witnesses as seen in the fact has made the case to lack quorum as such the judgement should
not procced hence the number of witnesses required was not met by the applicant.

Finally whether Mrs C claim to perform complementary oath will be admissible. Mrs C is
entitled to perform complementary oath hence she has failed to adduce the number of
witnesses required to prove her case.