FJT08 Fiqh of the Judiciary & Testimonies – Hearsay Testimony & Retracting It
Channel: Hatem al-Haj
File Size: 40.57MB
I'm about to proceed. Today inshallah we will go over two chapters, the chapter on here hearsay testimony that secondhand testimony and retracting it that will show that young Shahada or renew our jorja, Babel, Shahada, Tiana, Shahada or Julia
and then the second one would be the chapter Baba Dawa babinda yameen for Dawa, which is the chapter on both in court claims.
So the first chapter which is hearsay testimony, and retracting it, babble, Shahada, trs will rejoice where you could say to others, that he or rojo
died in the year 620 after he said in his book on that effect, or alarm them,
which is a Hanbury primer under the
the segment on
judiciary under the chapter on hearsay testimony and retracting it babble shout out a shout over johannah. But I chose to honor sad that he female josephy get the
harder to ask the mountain away button. Amara, then when
they start the
fire code, it's had honors, that he any action and therefore that occur in the house had any? Because Okay, so here's a testimony is permissible in cases where the book of the judge is permissible, as long as the primary witness cannot testify due to thus, absence disease or the like, on condition that the primary witness drew attention
to the testimony by saying the bear witness that I testify that so and so acknowledge such and such before me, or that he asked me to witness such and such. Okay, so
this is a matter of agreement among the scholars, that second hand testimony hearsay testimony will be admissible proof in court.
Why is this because of the extreme need for hearsay testimony, the who the rights are in particularly when we're talking about financial rights,
you know, extend beyond the life of witnesses, and extend beyond
the ability of the witnesses to present their Shahada in the court, you know, witnesses can die, witnesses
get sick, witnesses travel. So how do we establish the rights when they do
that's why there is room for hearsay testimony, hearsay testimony or secondhand testimony. It has conditions
and we will discuss the conditions. But the point here is the needed this because they relied a lot on Shahada and if you just you know
if you want to be anachronistic about it and say to yourself, what's the big deal Why can't they just have it documented somewhere
that is that is present isn't that's just living in your current times and judging the past
according to the standards of the present.
We did talk about this before and we did talk about the beginnings of you know accepting
written documents. It is called the nowadays you know the the people who are specialized in today's they call this the urinal.
writing documents as proofs, written documents as proofs. Now you have something called County Recorder. In in Egypt for instance, this is called Musleh Hata sobre la Chari County Recorder where people
In ownership of particular properties, and have a document, and then you go back to the same agency and
ask for a document to prove your ownership. All of this is based on what the idea of GitHub and cardi
what is GitHub are the the judges letter.
Judges not like to another judge. So the judge that use you know, consider the person this agency to be like a judge, he verified your ownership of the property, he documented this seal that stamp that of course, if in Egypt, there is something for them, which is like, postage that you have to pay for to get your thing stamped and ma
Yeah, them guys.
Yeah, it has basically stamps to verify, basically, to make it to officiate it to make it authentic. And official. It's a way for the government to collect money from people I guess.
But but that's fine. That's fine.
So the idea here is now they didn't rely much on this, particularly in the authorize the view of the for a man's, they did not rely much on this. And they gave more importance to the testimony of living people, you know, to people come in, and they didn't rely so much on this, because of the possibility of
forgery, and fabrication of the so if we now have, if we now have better methods, better methods to ensure the soundness of these proofs that the written documents to ensure the authenticity of these written documents, whether it is the government stamp or something, they still, you know, you know, how people would always find ways to,
to do their own tricks. But anyway, nowadays, it's more acceptable. And we did talk before about
Manasa, and how he and his times recognize that, although it is not authorized to view in the form of I have to accept, in fact, of the party, basically, the handwriting of the party has proof. Once you verify that this is the handwriting of the party.
He said that the man and healthcare, the ultimate are they that the the rulers, the judges,
all of them, have accepted that because of the need, because of any then we said that in the Hanbury madhhab demand they may or himolla, chose the position that when the heart of the party is verifiable, you judge on the basis of the heart of the party. And we talked about nowadays, cyber security and all of that stuff. And we The bottom line is you just need to make sure that this is authentic, you need to make sure that this is authentic, for them to witnesses beat this anytime of the day.
Because for them to verify the authenticity of the heart of the coffee was an issue.
What was difficult was difficult.
because of this, and because of the need for the living witnesses, have you considered the testimony of hearsay witnesses or second hand witnesses to be necessary to accept? That's why in the form of I have the authorized the view is generally largely accepting the hearsay testimony. They certainly disagree on the details.
Okay, so that's the issue of the hearsay testimony and the need for the hearsay testimony nowadays, we have less need for it because of this documentation and County Recorder and slotta satellitari and all that stuff. Okay. But here is a testimony is also a little bit problematic. It's secondhand testimony, and it is not as strong as the original.
And you like every time you have hearsay testimony, and it's endless, you know your site is so and so he heard it from so and so where they're from so and so. Every time you have here, say if it's the morning you add to the risk of error. You're
You're increasing the risk of error. That is why Allah subhanaw taala seventh, the Quran factorable then write it because the written document along with the hearsay, so you have the written document and you have the two witnesses.
The written document along with the here to say this morning, the the app to each other.
But writing and the Quran in this verse in Surah, Baqarah was interpreted to mean a recommendation not an obligation according to the vast majority.
So what do we do with the hearsay testimony, we'll have to have some conditions for the hearsay testimony because of the risk of error, the higher risk of error and hearsay testimony there before we will have to have some conditions, whether they is a talks about the conditions here, and
Okay, so the first thing that he is, is the first thing is permissible in cases where the book of the judge is permissible. The first thing that he discussed is the scope of the scope of hearsay testimony, what is the scope of hearsay testimony? Whenever the book of the judge is acceptable hearsay testimony will be acceptable. Okay, so when is the book of the judge acceptable in the Hanbury mouth?
How can add me the rights of people concerning the rights of people now in Rwanda
he shows us the position that he or say that the book of the judge is acceptable and all things except her dude fixed penalties and qsrs retribution. But in the Hanbury method, in the authentic authorize the view of the mouth of according to the other generations,
it is not except for the assets except for Hadoop, because Cassandra is considered to be happier than the rights of people. So hapuku have a lot of now and musataha that allow the rights of Allah at the basis when it will concern in the rights of Allah would be what Messiah Maha leniency because Allah is lenient with his servants a lot does not need us, you know,
versus people who have needs.
Moshe Ha, ha, which is miserliness.
So, so that's the first thing when it comes to Shahada hearsay testimony, we will apply this only to me to the right people, it is not going to apply to her do not in Hadoop, we will not accept hearsay testimony. And
So that's the first limitation of hearsay testimony that doesn't work. And, of course, you know, we live
Misha bohat are to be averted by Chabot hat, which is any doubt.
And certainly hearsay testimony creates some doubt, that's the risk of error. Because it's secondhand testimony. So he says here, in cases where the book of the judge is permissible, as long as the primary witnesses cannot testify due to death, and that's the second condition. The second condition is the primary witnesses are not here to testify. If the primary witnesses are here to testify, or they show up before the secondary witnesses deliver their testimony, we will not take that testimony of the secondary witnesses, why should we
if the primary witnesses are available,
so, they are not able to testify due to the absence disease or the like, or the like. Then another condition here on condition that the primary witness drew attention to the testimony by saying, bear witness, that I testify that so and so acknowledged such such and such before me, or that he asked me to witness such and such. So, if they you hear you overhear you overhear the primary witness, they're they're having a discussion, and he says to his wife, for instance.
I saw not not I saw he says his wife that
This particular property belongs to x or y or z. Or it says this friend or something. And you over here, does that work? Not in not necessarily over here. You're sitting with them, you know, in that living room, and he says something about property being belonging to somebody. Do you accept that?
No, you don't.
And unless he tells you, listen to me pay attention and hear my testimony. Because hearsay testimony that is based on mere sort of hearing of a discussion is, is certainly weak. At starting the week, he has to your hamelech had, he has to deliver that testimony to you, and and basically solicit your attention so that it's serious. And so that you know that you're exactly basically that the harm
to deliver your witnessing his acknowledgement prior to delivery.
Now, there are two different two conditions in which this does not apply the two conditions in which this does not apply, if you hear him specifically saying the reason of transfer of ownership, he does not have to tell you, he doesn't have to tell you hear my testimony, or hear my acknowledgement, if he says, I sold
That is the reason of transfer of ownership. And if he spells it out this way, then you could testify that he said that he sold his property to x, if you hear him in the court, in the court
saying something he doesn't need to solicit your attention. Because in the court, people don't just sit down and talk nonsense, he must be careful about every word he's uttering in the court. So, if you overhear him in the court, or if you hear him specify that reason of the transfer of ownership, and these two cases, you could that lever the second path is the morning and it will be accepted Otherwise, it will not be accepted, unless he solicited your attention. And he told you listen to my acknowledgement, or listen to my testimony, bear witness that I testify that so and so acknowledged such and such before me, or that he asked me to witness such and such, I mean, if you hear if you
hear the cry or the acknowledgement of a person, you are a first first hand witness, not a second hand witness, but your your hearing here that his testimony is witnessing of the process of another person
or testifying about a particular transaction.
Then he says what I refer to the data show that asked me for trustworthiness of both the primary and secondhand witnesses is a prerequisite is a prerequisite. So you will have to have
trustworthy, you know, the the original and the second hand witnesses need to all be trustworthy, that's understandable, right? Okay. And they need to all continue to be trustworthy until that time of delivery of the testimony, the time of the delivery of testimony. So,
heard the Y
say testify to something x heard why testify
then why became faster here?
He is the original. He's the first second why became faster appear.
If x does not deliver the testimony until here,
he cannot deliver the testimony because his original witness became faster before the delivery of the testimony well he heard it when why was not fast appear
at the time of delivery
All the witnesses whether they are original or or second primary or secondary, original or
hearsay witnesses, they have to be good. They have to continue to be vigilant at the time of the delivery of the testimony,
then the chicks will not
be sure how the father had to have
that team when how the feminine body, ma'am Now,
let me be here. If the primary witness witnesses appear, then the judgment will depend solely on their testimony, as long as a verdict has not already been passed,
based on the testimony of the secondary witnesses, if any of them the primary witnesses gets involved in conduct that deems their testimony inadmissible, their testimony shall not be acted upon. And we already clarified this. So.
Okay, so both are straightforward, right? It's common sense. If the secondary witnesses appear in court,
after the primary witnesses come back from travel, or become well, you know, after sickness,
we will not accept them, we will call the primary witnesses that attend the
with the secondary witnesses come, we will believe them, if they say the primary witness died, the primary witness is sick. But if the common say the primary witnesses,
just, you know, the primary witnesses delivered this testimony to me, but he's busy
doing something trivial, you know, is we know that, like, if he's really busy, then this was different. But he was he delivered this to me, and then he traveled, but he came back, we will have them just go home and tell the primary witness to come and testify if he is in town, or if he is within shortening distance shortening distance myself.
So he's nearby, he's not farther away from the shortening distance, when you short that where you shorten the prayer, go home, bring me the primary witnesses. And as I said, if the primary witness does something that disqualifies them from being witnesses, we will disqualify the whole chain, because the whole chain is based on the primary witness. So we will disqualify the whole chain.
Of course, the secondary witness does not disqualify the primary witness of the secondary witness became faster,
you will not accept the shadow of the secondary witness, but you will accept the shadow of the primary witness if they are able to come to court.
Then the six
he will now talk about
recounting in different ways. So So I hope that this is clear when when hearsay testimony is accepted by all the scholars here, say this morning applies in the Hungarian method to the scope of the mean or the rights of people, not to the whole Dude, you will not accept hearsay testimony and her dude,
is a little bit
riskier than the original testimony. Therefore, there would have to be some stringent conditions added. If the primary witnesses are able to come you will not take the hearsay testimony.
The primary and secondary witnesses need to be all or do it and there are there needs to continue until the time of
the delivery of the Shahada.
Then the sheikh says fast to another
couple and how can we be further our Narcos Koblenz coblenz sub section if a trustworthy witness changes his testimony by adding to it or deleting from it before the verdict is passed? It will be accepted. Of course, you because whenever you feel that, that doesn't sound right. You will always have another position in the unbury method which says no it would not be accepted.
So the authorize the view and the method is that this will be
be accepted. If you change your testimony, before the verdict is passed, we will say
Minnesota, and for them
the homemade okra, so then bring one man and to women of acceptable witnesses witnesses that you accept, to testify to the last one of them makes an error. The other one were to remind her, so Allah, although one of them
could make an error could forget, if she's remind that Allah said we would accept that this morning. Like her, her other sister reminded her. So.
So what if you as a witness,
remember the details? You know, you were, you know, not sure about the details, you made a little error, but you corrected yourself before the verdict is passed when we accept it or not. Okay, so we have two positions in the mother. The authorized position says yes, we will accept it, because she was reminded by her sister and we still accepted her testimony. So if you remind yourself or for you remember yourself, we were accepted. The other position in the map says what know since you were not accurate or not sure about it, and you change your mind both testimonies when both you know, the origin and the corrected one will not be accepted, because he will, he will not 3d on top of it. So
we're not sure about you.
Okay, now, the SEC says and how does that mean who ma'am na kupuna Have you heard that when hypothetic about the hook me behind them you asked him if he does something that makes his testimony inadmissible his testimony would be rejected. If this happens after the verdict has been given though, it will not have any effect it will not have any effect
then he will discuss now
recounting one's testimony. So, and then we will talk about you know
recounting or changing your testimony
Okay. Let's say you
let us say
this is the very back
and this is execution here right because there is some space between the various things execute execution usually right verdict execution, the judge will pronounce the verdict first and then it will be executed whether it is property division or property whether it has happened whether expenses, there is very big there is execution. So, we have before the verdict between very disciplined execution and after execution right.
So, we have those
before the verdict between the execution and after execution these are different What if
between the verdict and execution one witnesses disqualified
we will execute
and you know, how to them to sauce retribution and her dude, because this involves what cutting of things
and that's a penalty and so on. So,
certainly for some cases, even after the verdict, we will stop the execution will stop the execution but not in financial transactions and things of that nature.
Okay, so what if you What if you take your testimony back recount
we will need to remember this here before the verdict after the verdict and before execution after execution when rajas to bother
him lamb young cub and when I'm young, at our when I'm young now let's do it.
Haven't had the worker sauce while I even got my fat bitch. at him the mystery in cannabis Liyan work the Met he in Ghana, in Libya couldn't miss layer or in canopy mayor. If the wetness rica if the witnesses recanted their testimony after the verdict has been passed, the verdict will not be overturned, and execution will not be stopped. except in cases of Hadoop and pithos. They must pay compensation for any losses incurred because of their testimony. If it is fungible material, they have to pay the equivalent, but if not, they must pay its value. Let's take these are two paragraphs, the first one, if the witnesses recanted their testimony after the verdict has been
passed, the verdict will not be overturned, and execution will not be stopped accepting cases of the MP sauce. Is this clear? So the witnesses came here and said, the witnesses came here and said, we take it back, we were wrong, or we deliberately lie
wrong and deliberately lied, will not make a difference in terms of the
execution of the verdict, it will make a difference in terms of their baman what they're liable for what they are liable for. But that doesn't make a difference in terms of our execution of the verdict, whatever it is,
if this was before the verdict and and by agreement, the verdict will not be passed.
If this is after execution, okay, execution is done. So we're, we're not talking about execution, because it was already done.
There will be a discussion of what the liability of the witnesses that's a separate discussion
between the verdict and the execution
between the verdict and execution, they take their test their testimony back they recount What do we do move to execution the verdict has been passed, that's the default move to execution the verdict has been passed and it will not be overturned except when it is you know, very consequential and do them castles, because that will involve
things that are extremely consequential then dude are to be averted by Chabot ha and although the verdict has been passed, but execution is not has not been done.
So, even if there is one witness based on his testimony, the execution of financial transactions
he will be liable for
making you know the difference of if there is one witness and then
of the financial transaction. He that one witness like let's say one witness and the oath and we judge them on the basis of one witness and the oath of the claimant, if the one witness after execution,
before execution, we will we will move on after execution that one witness will be liable liable for the losses that one witness would be liable alone for the losses, we will not say that it is just one witness. So he should be liable for half of the losses, because the verdict was based on his testimony and the oath of the claimant and secondary to his testimony. Therefore, we will make him liable for all the losses
so, this is clear here when it comes to execution we will move on we will not before the verdict the verdict will be stopped will not be passed. After execution it is done.
Between the verdict and execution we will not overturn the verdict we will move on to execution except in the case of hidden pieces, fixed penalties and retribution.
Then the second paragraph here he says they must pay compensation for any losses incurred because of their testimony. If it is fungible material, they have to pay the equivalent but if not, they must pay its value, its value. Okay. So now this is in terms of liability. liability, whenever the verdict as if the accident was passed, or execution took place.
Witnesses in financial transactions will be liable
will be liable also the witnesses in non financial transactions that have financial you know, let's say there is
a case of injury in which there is no equal retribution, you remember certain cases of injury, there is no equal retribution there is only compensation financial compensation,
we pass the verdict, we we will not you know, even if it was there was like cutting involved or you know, equal retribution involved, we will not proceed to that, if the witnesses recant, but there are say,
in this case, we will not proceed. So, what will be
the verdict has been passed, the witnesses recanted, what do we do here? We
have firm the financial consequences of the birth of the verdict,
not the physical punishment, the financial consequences of the verdict, and then we make the witnesses liable for those financial consequences of the verdict. We make the witnesses liable for the financial consequences of the verdict. Now,
let us say that, you know this fungible and non fungible stuff you probably remember it if you have a piece of furniture and the witnesses said this piece of furniture belong to x, when it is act when it actually belongs to y. If the PF this piece of furniture is fungible or non fungible,
it's not IKEA and there are times there was no IKEA.
So it is considered non fungible. It's it's one of a kind, non fungible very since like, two saw or 20 saw.
Wheat for instance, 25. Wheat is fungible or non fungible, fungible, fungible, meaning you can find the exact equal 20 hours a week ago Go Go get 20,000 weeks. This one is non fungible. So what the witnesses will be liable for is what I'll miss is the equal health Kima is the value. So are they liable for the equal or the value? The value because it's non fungible, you can't find that exact equal.
That's what he's saying here. And then he says,
where Kunal Vedic avena humara Raja, Allah has sought, the liability should be divided equally among them, if just one of them recants he will be responsible for his share of liability.
But if it is one witness, he will be responsible for all the liability. If we if the verdict was passed, on the testimony of one witness, he is responsible for all the liability, because the oath is not like a second witness. The oath is far I mean, it is based on the mean it is, you know, with the oath is based on that is the one that is the morning of the one witness. So you have two witnesses, the recanted
each one of them will be responsible for half the liability. You'll have
two witnesses, one of them recanted, he will be responsible for one half. You judge them on the basis of one witness and well and the oath of the claimant, that one witness witness weekends, he will be responsible for the liability the entire liability.
Then the SEC said we're in Canada must be Caitlyn out. Jehan. *a Lu, Tom Magna, foul, follow email kisses.
Very more at their how our shelter.
their testimony was about murder or physical assault, and they admit that they intended to falsely testify, they will be subject to sauce, if they say we did it by mistake, they will be liable for that they are the compensation for the injury they will be liable for the day or the compensation of the injury. So, after execution, we said before execution we will not proceed. The recount before execution we will not proceed. They may still be liable for something financial counts.
sequences of the very big, not the cutting or anything, but after execution, they came and testified against someone, like let us the
for emphasis and equal retribution or even and had, they came and testified and he was killed.
And then they said, We can wire you to Canton.
We made a mistake, okay, if you made a mistake, then you're responsible for the blood money of that person who was skilled, irresponsible, because you should have been careful, should have been careful about your testimony. If they say, We deliberately lie,
or they you know,
I don't know if people nowadays in the past when people repented, they would actually do this, and they would be willing to die to further repentance to be accepted and stuff like this. Not that much nowadays, but still possible. So if they say, for instance, we deliberately lie,
then it will be equal retribution, they'll be killed.
Why? Because their testimony was a direct cause of the person's death,
the direct cause of the person's death. And here, you could say, this is seventh, not MOBA, Shara.
So this is a cause they did not kill him themselves. It was the judge, but the judge here is completely reliant on their testimony. The judge here that, you know, he's completely captive to their testimony, when they testify, he will have to execute the very big A and B, so the jobs here will not be responsible. Sometimes we will make the rulers responsible if there was negligence on their part, or if there if, if we could not make the witnesses liable for some reason, like, you know, the first witnesses, the original witnesses. We didn't tell them the the hearsay witnesses, they say no, they told us and they disagree, can we make the witnesses liable? Now, we can't,
because here we cannot verify if they actually heard it from the original witnesses or not, then that liability will be transferred to the system to the court, courts will be liable.
And certainly, if there is any failure on part of the judge and hearing the music keen, basically verifying the trustworthiness of the witnesses.
There they the court will be liable. Sometimes that was a key and we'll be liable. That is basically the people who testify to the trustworthiness of the witnesses.
So it liability you know, the rights of people will not be lost. We will allocate where liability goes you know, somebody will be liable here
and that brings us to the end of this chapter and the next one inshallah, after five minutes will be the chapter on oath in court claims or Babri Ameen for Dawa.