QASAMAH

INTRODUCTION CONDITIONS FOR METHODS OF QASAMAH

QASAMAH The Jurists differs as to who should WHO SHOULD TAKE THE
1. Qasamah is repeated oath in start the pronouncing of the 50 oath , EFFECT OF QASAMAH
cases of murder with certain should it be the heirs of victim or the
OATH
1. HUMAN BEING
conditions. The victim must be a human accused. The effect of the qasamah whether it is
Jurist h/ever gave different opinions: 1. According the some fuqaha the person
being - is being killed irrespective who is obliged to take oath are every heirs or intentional murder or unintentional murder
of whether major/minor, 1. HANAFI: or quasi intentional murder, the diyyat
1.1 HANAFI: Qasamah is Oath The accused or his relatives or his some of the heirs of the deceased.
sane/insane, woman/man or should be paid by the OKT side.
taken by 50 inhabitants of a Muslim /Non. representative should take the
2. HANAFI
particular place where a person is [Link] will choose among INTENTIONAL MURDER:
2.1 Oath is obligatory to some of the heirs of
murdered and the murderer is not [Link] IS INDICATION THAT themselves 50 person to take the oath. Syafie & Hanafi: No qisas punishment should
known. the [Link] must be male, baligh and
VICTIM IS KILLED.- sound mind. be imposed becox qasamah is weak proof.
This conditions is put by Hanafis. 1.1 This is based on the Hadith But diyyat is payable from OKT estate.
1.2 JUMHUR: Qasamah is 50 oath reported by Bukhari from Said b. Abdi 2.2 Children and unsound mind are not
Bahansi states Nowadays ,it is obliged to take oath but must contribute to
taken by heirs of deceased in order easier to determine cause of Al-Tai from Basheer b. Abi Yassar that Maliki & Hambali: Obligatory to impose
to affirmed the charge becox of a man from Ansar by the name of Sahl the payment of diyat.
death through mordern science. 2.3 Female heir is entitle to take 50 oath if Qisas punishment after the process of
lauth (circumstantial evidence) B. Abi Hatman who was murdered. The qasamah.
deceased was found in her place and there is
3. LAUTH Prophet s.a.w said to the effect: “Give Maliki: If the OKT are more then one person
no other witnesses.
2. BASIS FOR QASAMAH There is circumstantial evidence evidence as to who the killer is”. They only one person shall be punished.
replied: “ We do not have evidence.”
3. ABU YUSUF
2.1 Al Isra: 33 – “And If anyone is 4. THE MURDERER IS The Prophet s.a.w. then said: ‘Demand Hambali: If OKT is more than One person,
the oath from the suspects.” They Female not obliged to take oath but must be
slain wrongfully, We have given his UNKNOWN (Hanafi) taken by her relatives on her [Link] she no qisas shall be imposed in the absence of
heir authority (to demand Qisas or Jumhur: Where OKT denies it and replied: “We do not agree to oaths proof of common intention among them.
spoken by Jews”. As the Prophet s.a.w. must contributes to the diyat .
to forgive)”. the heirs of the victim does not
have evidence to support their did not like to think that Sahl`s death CONCLUSION:
2.2 Hadith: charge then the heirs can take will be in vain , he ordered the WHO SHOULD PAY DIYYAT We cannot apply qasamah in Syariah court in
It was reported that Prophet s.a.w. qasamah. payment of one hundred camels to Malaysia, becox they don`t have jurisdiction
had allowed qasamah to be used Sahl`s heirs as compensation from 1. INTENTIONAL MURDER to trial murder cases.
just as it was practiced during the 5. HEIRS MUST LODGED A Baitulmal. Diyat must be paid by the inhabitants of the
jahiliyyah period. Base on this Hadith, the Prophet s.a.w. place who take the okt.
REPORT
The heirs, successor or executor demand evidence from the victims side
2.3 It was reoprted that The of victim had lodged a charge to faikure of which he ordered the 1.2 MALIKI: The family of the deceased is
Prophet s.a.w. had asked qasamah court demanding [Link]. accused side to take oath. obliged to take the oath.
to be administered against the Shafie & Hambali : the heirs must
successors of `Abdullah [Link] who unanimously agreed to the 1.2 Hadith: Reported from Bukhari and 1.3 SHAFIE: There is no difference between
was found murdered in a Jewish Abu Daud that Abi Salamah and the two types of murders. The obligation of
charge.
village in Khaibar. Sulaiman b. Yasar of the Ansar had oath is on deceased whether male or female.
said that the Prophet s.a.w. had said to Oath must be divided by them.
[Link] IS A REQUEST FOR
[Link] WHERE QASAMAH QASAMAH– by the claimant. the Jews to the effect: “ Fifty of your
men should take the oath.” This they 1.4 HAMBALI:There is no different between
CAN BE ACCEPTED refused. The Prophet s.a.w. then the two types of themurders. The obligation
In Murder cases whether intentional [Link] BODY WAS FOUND IN
turned to the Ansar and said:'’ake the to take oath is on the heirs of the deceased
or un-intentional or quasi intentional PRIVATE PLACE–
So that diyat can be claimed from oath."”The Ansar asked:”Should we who are [Link] exclude, female,
cases. take the oath on something which is children and unsound mind from taking oath.
the party concern. If murder or
body found in public place, unseen O Prophet!”.The Prophet s.a.w.
3.1 HANAFI: Qasamah relevant then ordered the Jews to pay the diyat 2. UNINTENTIONAL MURDER
only in murder cases where killed qqasamah or diyat will not be
as the body was found in their area. Diyat must be paid by the relatives of the
[Link] murderer is known then applicable becox Baitulmal will be
OKT.
qasamah is not applicable as payable.
1.3 Hadith: Zaid b. Abi Maryam
murderer subjected to qisas/ who is reported that a man had gone to the MALIKI: In unintentional murder the heirs
entitle to pay diyat. Umar once took money from
Baitulmal to pay for a victim Prophet s.a.w. and asked: “O Prophet, of deceased must take oath. If they refused
I have discovered that my brother had to take oath then the family of the deceased
3.2 JUMHUR: Qasamah not be found killed during tawaf.
been killed in such a person`s area.” should take the oath , if no family then OKT
appliied except when there is lauth himself will take the oath.
[Link] ACCUSED MUST DENY The Prophet s.a.w. then said: “Gather
(circumstantial evidence) and no fifty of their men to take the oath in
clear evidence to identify the THE CHARGE
If OKT admit the charge then no the name of Allah that they did not kill
murderer. him and they did not know who the
qasamah is applicable.
killer is.” The man said: “O Prophet , I
4. MEANING OF LAUTH do not have any other relations except
4.1 HAMBALI: Circumstantial him (the murder victim).” The Prophet
evidence that can create suspicious. s.a.w. said: “For you one hundred
Lauth can exist if there is clear camels.”
enimity between the victim and OKT
but if no enimity but shows strong
proof to the charge then it is not 2. JUMHUR: (Maliki,Syafie & Hambali)
lauth. 2.4. SYAFIE: If victim family
refuse to take oath , we should 2.1. The relatives of the deceased
asked the OKT to take oath. But if should start the fifty oaths.
4.2 SHAFIE: Lauth is situation
surrounding a word or action that the OKT also refused to take oath
Hadith: From Sahl b. Abi Hatman who
can show the truthfulness of the then it goes back to the deceased
[Link] now they agree to said that the Prophet s.a.w. had said:
claim made by the (P) or if there is a :” Are you prepared to take the fifty
sign which can create suspicion as to take oath then OKT will be
ounished .But again they refused oaths?. With that you are entitled to
the truth of the charge. the blood of your brother”.
to take oath, they are not entitle
for diyat.
2.2. If the victim`s relatives refused to
2.5. MALIKI:If OKT refuse to take the oath then the OKT must take
take oath , we should detained [Link] OKT takes the oath than he will
them untill they take oath. be acquitted w/out have to pay diyat.

2.3. HAMBALI: If the relatives of the

victim refused to take the oath and at
the same time they do not want the
OKT to take the oath then the suspects
should be released and the diyat is paid
by Baitulmal.
 OATH (YAMIN)

INTRODUCTION CONDITIONS OF YAMIN

PROVISONS OF KELANTAN TYPES OF OATH
1. Literaly oath means a right [Link] is becox (1) Islam There are three types of oath: 2. OATH BY PLAINTIFF
one who takes oath usually raise his right hand.
ENACTMENT
The maker of the oath must be a Muslim becox the
name/attributes of Allah is uttered. s. 87(1)-in civil cases, evidence shall be (1) OATH BY DEFENDANT 2.1. YAMIN AL – JALIBAH
Juristic Definition: Ahl Kitab –can take oath on the name of God who reveal the This oath is to support the (P)`s claim and
(a) Oath as a statement accompanied with the given by the palintiff and [Link]. (YAMIN ASLIAH )
Kitab. [Link] oath can arisein 5 situations:
name of Allah or one of his attributes in order to who denies the claim shall be asked to It also known as (I) Original Oath (Yamin
strengthen the allegation. take an oath according to hukum syarak. asliyah) (ii) Mandatory Oath (Yamin Wajib)
Shafie & Ibn Qudamah: Oath by Non-Muslim still valid base on (iii) Denying Oath (Yamin Raf``iah). (.) the (P)`s oath and l witness
Umar during Jahiliyyah period entered masjidil haram for itikaf. s. 84(4)(a) – when Def. takes an oath, the (.) Yamin al –mardhudah
(b) Words uttered in the name of Allah or His After he embrace Islam the Prophet s.a.w. asked him to pay (.) Yamin al –qasamah (oath taken by 50
attributes to allow the seriousness or emphasis claim of the (P) is rejected in TOTO Here the oath is taken by Defendant on the
kaffarah for breaking the oath. order by the judge to strengthen his defence persons when the killer is unknown)
in the matter which would not be established (.) Lian
s. 84(2) (b) – If Def. refused to take oath, against the charge.
w/out the pronouncements of Yamin. (2) Mukallaf (akil baligh) (.)under Art 1774-the trustee is in the position
the court may ask (P) to take oath. Aafter
He must be sound mind and age of [Link], children, oath the (P) claim shall be accepted. s. 87(1) In civil cases evidence shall be given of the (P) nd his oath is heard
2. LEGA; BASIS person who are asleep or under duress is not liable to pay.
Qur`an: by the (P) and by (D). The (D) who denies
Note: qasamah and li`an is exception to the
AN Nahl: 91 s. 87(3)- In criminal cases evidence shall the claim shall be asked to take oath
Oath of drunken person- two views: be given by the prosecution and the according to hukum Syarak. criminal cases.
Fulfill the covenant of God when you have (i) Daud al Zahiri and Abu Thur: Oath not valid becox not in
entered into it and break not your oath after accused unless the accused pleaded
control of their mental faculty quilty. This oath is also taken when (P) fails to 2.2. YAMIN AL- TOHMAH
you have confirmed them. (ii) Majority: Oath valid and he is accountable for his [Link] Oath taken by (P) to deny allegations against
produce evidence and it must not concern
normal practice, oath is to be taken in court as such the court s. 88 – Evidence of only one witness for right of Allah. him e.g. counterclaim. I.e. If D) object P`s
Al Maidah : 92 will not allow a drunken person to take oath in it. claim, here (P) can asked the permission of
God will not call you to account for what is futile the (P) is admissible in civil cases on ISSUE: 1
judge to take this type of oath.
in your oath but he will call you to account for condition –made together with (P)`s : What If (P) wants to submit evidence after
(3) Intentionally made oath. (D) had taken the oath?
your deliberate oath. This type of oath is only accepted by the Maliki
Oath must be given with intention. If w/out intention –
Whether evidence of One witness together (a) Hanafi & Shafie & Hambali: and Zaidiyyyah.
At Taghabun : 6 & 7 considered as slip of the tongue. Al Maidah:92 “God will not aske
Say, “By my Lord: Your shall certainly be raised you to account for what is futile in your oath..” with oath of (P) can be admitted as a -allow (P) to give fresh [Link]:
means of proof: (i) Oath is a weak method of [Link] does 2.3YAMIN AL –ISTIZHAR
up”. Oath taken by (P) in a request made by Qadi to
Relation between oath and intention. not terminate the disputes
discharge any tohmah against himself after
Sunnah: Maliki Shafie Hambali and Majority of (ii) Evidence is the original method of
submitting his evidence in the course of his suit.
-Hadith: Evidence is on accuser and oath is on Outside court-will follow the intention of the [Link] it is taken Shabah : valid and acceptable in mal [Link] is only a substitute
cases. Basis: Hadith: Ibn Abbas said the (iii)Umar said: A lying oath is more deserving It seves to perfect his claim/allegations.
the accused. with different intention for what is apparent then the oath is
Usually it is applied in the caseof missing person
Yamin al-Tauriah prophet s.a.w. had decided based on the of rejection than trustworthy evidence.
e.g. husband did not attend the court case.
-Abu Hurairah reported fro the Rasul s.a.w.: evidence of one witness and oath of the Hanafi: This type of insident is very rare
Plaintiff. becox the (D) will only be allowed to take Ibn Qayyyim : Rely on the Practice of Sayidina
“Do not take an oath unless it is in name of Inside Court- it will depends on the intention of the judge or the
Ali r.h. :Ordered (P) to take oath although he
person who request for it and not of the maker. Umar Abd Aziz had instructed Governor of oath when (P) had failed to produce
Allah”. produce 2 witnesses.
Hadith: The oath is dependent upon the intention of the person Kufah to admit such evidence. evidence. Ref. Arty. 1573
-Ibn Abbas reported that the Prophet s.a.w. Maliki: applicable in dharurat.
once gave judgement based on the oath of a requesting the oath.
claimant and also the oath of male witness. Syafie & Hambali:They put 2 conditions before oath made inside Mazhab Hanafi: Refuses to accept such (b) Imam Malik supported by Imam al
EFFECT OF PLAINTIFF`S OATH
court can be accepted following the intention of the judge. kind of [Link] al Baqarah: 282 “and Ghazali:
(i) Judge requesting the oath shall not have the intention to get two witnesses of your own men”. also allow (P) to give evidence but if the (P) Jumhur except Hanafi:When (P) had taken the
-Prophet s.a.w. asked a man: “Do you have oath, judgement can be passed in (P)`s favour.
evidence?”. The man replied: “I don`t have any order a talaq or to free a slave. Hadith: Evidence is on the accuser and purposely conceals the evidence , he will not
oath is on the accused. be allowed to give [Link] Syafie The claim is maintainable.
evidence to support the claim”.The Prophet (ii) Judge shall not act unjustly in his order.
scholars agreed with this view.
s.a.w. said:”You may ask the oath from the 3. OATH BY WITNESS
defendant”. (4) In The Name of Allah or One of His
Attributes. (c) Zahiri School:
Does not allow (P) to give evidence anymore. Taken before giving Bayyinah but taken in the
3. Oath may be made outside or inside the Hadith: Verily Allah has forbiden you from making oaths in the (b) Maliki, Syafie & Imam Hambal form of tazkiyyah and to strengthen testimony .
court. name of your anchestors but whenever wishes to take an oath Becos (.) The oath of (D) has cancelled the
Refusal is not sufficient ground to pass This is ccepted by Ibn Qayyim, Maliki and
do so in the name o Allah.f right of the (P).
judgement against (D) becox oath is weak Zaidiyyah.
(a) Oath made Outside Court Hadith: Do not utter an oath on your [Link] who make (.) Oath of (D) has same weight with (P)`s
method of proof. It must be corrobated
No legal implication.H/ever it binds the maker Yamin yamin with others except Allah is a shirik. evidence.
with (P)`s oath ,whether or not from Maliki: If there is any doubt in the witness,
of the oath and this depends on his [Link] (D)`s request. then may ask the witness to take oath.
he breaks it, he has to oay kafarrah. Reason – to show seriousness of the maker and to strengthen his s. 72- Burden to produce evidence is on
IF (P) takes the oath, then judgement will
Al Maidah: 92 statement. person who sues and oath on person who
be given in his favor .If (P) refuse then Hanafi: If the witness going to give Shahadah,
Maliki – The name of Allah should be further added by the denied.
case struck off. t/fore no need to take oath as shahadah implies
(b) Oath made Inside Court phrase: “No God except Him” s.87 (2) (a) –When (D) takes the oath, (P)`s
Hadith: Umar rh. Said that the Prophet [Link] of witness established and not
Oath inside court can become a means of proof. claim is rejected in toto.
s.a.w. use to give judgement based on necessary for witness to take oath.
It is originally to be taken by the defendant (5) Pronouncement must be clear and unqualified Yamin al Mardhudah.
when the (P) fails to produce evidence and s. 87(3) In criminal cases, evidence shall be
and unreserved and unequivocal. Al Maidah: 107.(refer)
done by the request of the Qadi. given by (P) and (D) unless (D) plead guilty. CASES
Words like “inshaallah” will nullifies the object of oath and ADIBA YASMIN v ABD RANI
qualified it.. “Whoever had sworn an oath and later says (c) Zahiri School:
s. 87(2)(b) –If (D) refuse to take oath, the P applied for divorce ta`lik on the gr that
ADMISIBILITY OF OATH “inshaallah” he therefore has broken his own oath”. Refusal to take the oath is not a ground to
court may ask (P) to take oath and after oath husband beat and slapped her. Evidence by (P)
convict the (D).The oath shall not be
taken the (P)`s claim will be accepted. not strong and (D) was asked to take oath.
transferred to the (P). (D) will be
[Link] OF MAN– civil cases relating to (6) Must be in the Form of Denial or Refusal to Court rejected (P)`s application after (D) took
compelled to take the oath untill he
property then oath is [Link] cases the claim ISSUE : 2 the oath.
agrees to do it.
relating to non property cases i.e. talaq, If (D) denies to take oath can judgement be
marriage there are 2 given for (P)? TUMINAH v ARRIFFIN
(7) Request of the Claimant to the Qadi s. 87(2) (b) – (refer) it follows Shafie`s
Here refusal by (D) is known as Nukul al W applied for cerai ta`lik. Husband unknown his
views:Hambali/Maliki/Hanafi states can`t ask view.
The the qadi will asked the Def. to take oath and in certain Yamin, although he is under an obligation to [Link] not served and advertised
(D) to take oath. H/ever Shafie/Abu Yusuf: (D)
circumstances the judge may order the def. to take the oath take oath. in paper.W produce two male witness and court
may be asked to take oath in any kind of EFFECT OF THE DEFENDANT`S OATH
w/out request of the claimant. (a) Hanafi & One opinion from Ibn order her to take [Link] cerai ta`lik
rights. Will terminate the (P)`s claim and will
Hambali was granted.
(8) Oath Must be Made Personally settle the dispute.
2. RIGHT OF ALLAH – Refusal amounts to admission and
2.1 Hudud Cases - according to majority oath is Art. 1745 – Oath cannot be made by wali or wasi. judgement can be made against the (D). SITI ZAHARAH v MALIKI
Jumhur: This is not absolute .(P) later
not admissible. Oath shall not be shifted to (P) becox the W claim for property and dower from ex
can produce evidence.
(9) Oath must not relate to cases relating to original is for (D) to take the oath. If the Husband.H claim that all property had been
2.2 Relating to Property- e.g. pay zakat – Right of Allah (Hudud and Qisas-becox these cases cannot right is on (D) side , he should not refuse to given to (W) to facilitate the divorce but (W)
Maliki: This is [Link] is becox (P)
Hambali: cannot ask owner to take [Link] be established only on oath alone) take the [Link] don`t recognise Yamin denied of such agreement. H brought 1 witness
cannot produce other evidence in other
Shafie and Abu Yusuf: can ask owner to take al Mardhudah. and (W) was asked to take oath and later
time after (D0 has taken his oath unless
oath. (10) Oath can only be admitted if (P) fails to “Yamin is always on those who denies”. decided infavour of (W).
(P) had unaware or forgetten about the
produce evidence existence of the proof.
2.3 QISAS – Oath is permissible