Islamic Fiqh > Judgment and testimony > Testimony (chahada) > Legitimacy and the witness's conditions
Contents
Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
Testimony is legislated by the Book, the Sunnah, consensus and reason.
As for the Book: the word of Allah the Most High:
« And take as witnesses two witnesses from among your men. »
Surah al-Baqarah, 282
To the end of the verse. And His word:
« And take as witnesses two just persons from among you. »
Surah at-Talaq, 2
And His word:
« And take witnesses when you trade with one another. »
Surah al-Baqarah, 282
And other verses besides.
As for the Sunnah: from Abd ar-Rahman ibn Abi Amra al-Ansari, from Zayd ibn Khalid al-Juhani, the Prophet, may the peace and blessings of Allah be upon him, said:
« Shall I not tell you who is the best of witnesses? It is the one who brings his testimony before he is even asked for it. »reported by Muslim 1719
Imam an-Nawawi said: this hadith admits two interpretations. The most correct and most famous is the interpretation of Malik and the Shafi'is: it applies to one who holds testimony establishing a right for a person who does not know that he is a witness; he comes to him and informs him that he is a witness on his behalf. The second: it applies to the testimony of public accountability (hisbah), which concerns matters outside the private rights of human beings; hisbah testimony is accepted in divorce, manumission, endowment (waqf), general bequests, legal punishments (hudud) and the like. Whoever learns of something of this type must raise it to the judge, inform him of it and testify, for Allah the Most High says: « And establish the testimony for Allah ». Likewise in the first case: one who holds testimony for a person who is unaware of it must inform him of it, for it is a trust deposited with him. A third interpretation has been related: that the hadith is a figure of exaggeration regarding delivering testimony after it is requested, not before, as it is said of the generous one that he gives before being asked, meaning he gives promptly upon the request, without delay. The scholars said: this hadith does not contradict the other hadith censuring the one who brings testimony before being asked, in the saying of the Prophet, may the peace and blessings of Allah be upon him: « They testify without being asked to testify »; and the scholars gave it several interpretations: the most correct, according to our companions (the Shafi'is), is that it applies to one who holds testimony for a person who knows of it, and who comes to testify before the testimony is requested of him; the second applies to the false witness, who testifies to what has no basis without being asked; the third applies to one who sets himself up as a witness while not qualified for testimony; the fourth applies to one who testifies without restraint that certain people are bound for Paradise or the Fire, and this interpretation is weak, and Allah knows best (Sharh an-Nawawi ala Sahih Muslim 12/17).
Ibn Abbas said:
« The Prophet, may the peace and blessings of Allah be upon him, was asked about testimony. He said: Do you see the sun? The man said: Yes. He said: Bear witness to something equally manifest, or refrain. »reported by al-Uqayli in ad-Duafa 380, Ibn Adi in al-Kamil 2/361, Abu Ishaq al-Muzakki in al-Fawaid al-Muntakhaba 1/110, al-Hakim 4/98 and 99, and al-Bayhaqi 10/156
From Abu Wa'il: Abdullah ibn Mas'ud, may Allah be pleased with him, said:
Whoever swears an oath by which he wrongfully acquires wealth, being deceitful in it, will meet Allah while He is angry with him. Abdullah said: Allah revealed in confirmation of that: « Those who purchase a small price, the covenant of Allah and their oaths », and he read until: « for them is a painful punishment ». Then al-Ash'ath ibn Qays came out to us and said: What is Abu Abd ar-Rahman telling you? We related the account to him, and he said: He has spoken the truth: it was indeed concerning me, by Allah, that this revelation came down. There was a dispute between a man and myself concerning a well; we brought our dispute to the Messenger of Allah, may the peace and blessings of Allah be upon him. The Messenger of Allah, may the peace and blessings of Allah be upon him, said: « Your two witnesses, or his oath. » I said: Then he will surely swear and care not. The Messenger of Allah, may the peace and blessings of Allah be upon him, said: « Whoever swears an oath by which he wrongfully acquires wealth, being deceitful in it, will meet Allah while He is angry with him. » Allah revealed in confirmation of that, and he then recited this verse: « Those who purchase a small price, the covenant of Allah and their oaths », until « and for them is a painful punishment » (Surah Al Imran, 77).reported by al-Bukhari 2380 and Muslim 138
And the evidence for the legitimacy of testimony is the saying of the Prophet, may the peace and blessings of Allah be upon him: « Your two witnesses, or his oath »; for he gave him the choice between testimony and the oath.
As for consensus: Imam al-Imrani, may Allah have mercy on him, said: there is no disagreement among the community that ruling is attached to testimony (al-Bayan 13/268). Imam ad-Damiri, may Allah have mercy on him, said: and there is no disagreement among the Muslims concerning it (an-Najm al-Wahhaj 10/283). Imam Ibn Qudamah, may Allah have mercy on him, said: and the basis of testimonies is the Book, the Sunnah and consensus (al-Mughni 10/154). Imam az-Zarkashi, may Allah have mercy on him, said: and there is no dispute over the legitimacy of testimony and of having witnesses attest (Sharh az-Zarkashi 3/389).
As for reason: the need for testimony is pressing because of the mutual denial that occurs among people; recourse to it is therefore required to revive people's rights, preserve contracts from denial, and safeguard wealth for its owners.
Shurayh said: « Judgment is an ember: push it away from yourself with two sticks, meaning the two witnesses; the litigant is a disease and the witnesses are the cure: so pour the cure over the disease » (al-Mughni 10/154, al-Ikhtiyar 2/166 and an-Najm al-Wahhaj 10/283).
Wickedness is of two types: wickedness relating to actions and wickedness relating to belief.
The people of knowledge agreed, as stated earlier, that the witness is required to be upright. If he is wicked for committing a major sin, or persisting in a minor sin, or for playing backgammon or chess for money, or committing anything else that is forbidden, his testimony is not accepted. Ibn Qudamah said: wickedness is of two kinds: one from the standpoint of actions, and we know of no disagreement over rejecting the testimony of this kind of wicked person (al-Mughni 10/168; see the earlier sources).
The jurists have spoken at length, in every school, on what counts as forbidden things. The controlling principle here is: whoever commits a major sin and does not repent of it, or persists in a minor sin, whether word or deed, has his testimony rejected.
The jurists differed on wickedness relating to belief, that of the people of whims among the innovators: is their testimony accepted or not?
The Malikis and the Hanbalis held that the testimony of the people of whims is not accepted at all.
The Malikis said: the testimony of an innovator is not accepted, such as that of the Kharijite or the Qadarite, even if it arises from an interpretation in which he erred: there is no difference between the one who misinterprets and the ignorant one who merely follows another therein, and ignorance is no excuse (Sharh Sahih al-Bukhari 8/588 and 589, at-Taj wa al-Iklil 5/108, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/614 and Tahbir al-Mukhtasar 5/110).
The Hanbalis said: the testimony of one wicked in belief, namely the people of innovation, is not accepted, even if he believes it to be a true religion; their testimony is rejected because this is one of the two types of wickedness, on account of which testimony is rejected like the other type; and because the innovator is a wicked person whose testimony is rejected by virtue of the verse. The meaning is: if he blindly follows the view that the Quran is created, or that Allah the Most High will not be seen in the hereafter, or Rafd (Rafidism), or Jahmism, and the like such as anthropomorphism or the creation of the servant's deeds, he becomes wicked; and the accomplished proselytizer among them is declared a disbeliever. Al-Majd said: the correct view is that for every innovation in which we declare the proselytizer a disbeliever, we declare the blind follower in it wicked, such as one who says the Quran is created, or that our utterances of it are created, or that Allah's knowledge is created, or that His names are created, or that He will not be seen in the hereafter, or who insults the Companions out of religiosity, or who holds that faith is mere belief, and the like: whoever is learned in one of these innovations, calling to it and disputing for it, is ruled a disbeliever; Ahmad expressly stated this in several places (al-Mughni 10/168, Kashshaf al-Qina 6/531 and Sharh Muntaha al-Iradat 6/663).
Al-Muwaffaq (Ibn Qudamah) chose the view that their accomplished proselytizer is not declared a disbeliever, in keeping with Ahmad's address to al-Mutasim: O Commander of the Faithful (al-Mughni 10/168).
The Hanafis and the Shafi'is held that the testimony of the people of whims among the people of innovation is accepted if they avoid lying, except the Khattabiyya among the Rafidites: they believe on oath anyone who swears before them that so-and-so owes him such and such, and they testify to it, believing him truthful in his claim. They are ascribed to Ibn al-Khattab, a man in Kufa who held that Ali is the greater deity and Jafar as-Sadiq the lesser deity; the governor Isa ibn Musa killed and crucified him.
The basis of the view accepting their testimony is that this disagreement did not take them out of Islam: it resembles disagreement over the secondary branches; and their wickedness does not indicate lying, because they adopted it out of religiosity and conviction that it is the truth, and did not commit it knowing it to be forbidden, unlike the wickedness of actions (Ikhtilaf al-Ulama 1/286 and 287, Mukhtasar Ikhtilaf al-Ulama 3/334 and 335, Ahkam al-Quran 2/234, al-Mabsut 16/132 and 133, al-Hidaya 3/123, al-Jawhara an-Nayyira 6/168, al-Lubab 2/458, the commentary of Ibn Abidin 7/108, al-Hawi al-Kabir 17/168 and 176, al-Bayan 13/280 and 281, al-Ifsah 2/421, Sharh Sahih Muslim 7/160, an-Najm al-Wahhaj 10/322 and 323, Mughni al-Muhtaj 6/386).
Imam al-Shafi'i, may Allah have mercy on him, said: the people, in interpreting the Quran and the hadiths, or some of them, went into matters on which they differed and parted ways most sharply; some of them declared lawful, against others, things whose account would be long. Part of this dates far back, from the time of the predecessors and after them to this day. Yet we know of none of the predecessors of this community whose example is followed, nor of the Successors after them, who rejected anyone's testimony on account of interpretation, even while deeming him mistaken and astray, and even seeing him declare lawful what was forbidden to him; and none rejected anyone's testimony for an interpretation that had a tenable basis, even if it went as far as declaring blood and wealth lawful, nor rejected the excessive in speech. That is because we found that blood is the gravest thing by which Allah the Most High is disobeyed after idolatry, and we found interpreters declaring it lawful on various grounds, while their peers exhorted them away from it and opposed them in it, without rejecting their testimony on account of the disagreement they saw in them. So the testimony of whoever declares something lawful through interpretation, in word or otherwise, stands and is not rejected for an error in his interpretation, for his opponent may likewise deem him to be the one in error. Except one of them who is known for declaring lawful false testimony against a man, because he deems his blood or wealth lawful: his testimony is rejected for falsehood; or one of them who declares lawful, or approves, testifying for a man he trusts, to the point of swearing on his behalf about his right and testifying for him categorically without having been present or heard anything: his testimony is rejected because he declares false testimony lawful; or one of them who treats the one who differs with him with open enmity: his testimony is rejected on grounds of enmity. Whichever of these it is, among them or among others not ascribed to sectarian whim, I reject his testimony; and whoever is safe from that, I validate his testimony.
And the testimony of one who deems lying to be association with Allah, or disobedience to Him that incurs the Fire, is more deserving of acceptance than the testimony of one who belittles its sin. Likewise if they are among those who insult a group on the ground of interpretation in their insults, not on the ground of enmity: if we validate their testimony despite their declaring blood lawful, their testimony regarding insults against men is all the more not to be rejected, for there is interpretation in both cases, and insult is lighter than killing (al-Umm 6/205 and 206).
Imam Ibn al-Qayyim, may Allah have mercy on him, said: the one wicked in belief, if he is scrupulous in his religion, his testimony is accepted even if we rule him wicked, like the people of innovation and whims whom we do not declare disbelievers: the Rafidites, the Kharijites, the Mutazilites and their like; such is the express position of the imams.
Al-Shafi'i said: I accept the testimony of the people of whims against one another, except the Khattabiyya: they make a religious duty of testifying for their partisans against their opponents.
There is no doubt that the testimony of one who believes in disbelief for sin and counts lying as a sin is more worthy of acceptance than that of one who does not; the early and later generations never ceased accepting these people's testimony and their reports.
What the imams, such as Imam Ahmad ibn Hanbal and his like, forbade was accepting the report of the proselytizer who proclaims his innovation and his testimony; and they forbade praying behind him, as a shunning and a rebuke of him, so that the harm of his innovation may be turned away from the Muslims; for accepting his testimony and his report, praying behind him, appointing him judge and executing his rulings constitute approval of his innovation, acknowledgment of it, and exposure to accepting it from him.
Harb said: Ahmad said: the testimony of the Qadarite, the Rafidite and whoever calls to an innovation and disputes for it is not valid.
Al-Maymuni said: Abu Abdullah (Ahmad) said concerning the Rafidites: may Allah curse them; their testimony is not accepted, and no regard for them.
Ishaq ibn Mansur said: I said to Ahmad: Ibn Abi Layla accepted the testimony of every innovator so long as he was upright among them and did not declare false testimony lawful. Ahmad said: the testimony of the Jahmites, the Rafidites, the Qadarites and the women who openly display their sins does not please me.
Al-Maymuni said: I heard Abu Abdullah say: whoever is such that I fear disbelief for him, like the Rafidites and the Jahmites: his testimony is not accepted, and no regard for them.
In the narration of Yaqub ibn Bakhtan: if the judge is a Jahmite, we do not testify before him.
Ahmad ibn al-Hasan at-Tirmidhi said: I came to Abu Abdullah (Ahmad), and he said: How is your judge? His life has indeed been drawn out for him. I said to him: the people hold testimonies with me; I have traveled through the lands; I do not feel safe, if I testify before him, from being disgraced. He said: do not testify before him. I said: he will question me, the one who holds a testimony with me. He said: you are entitled not to testify before him.
Whoever disbelieves through his doctrine, such as one who denies the temporal origination of the world, the resurrection of bodies, the Lord's knowledge, the Most High, of all existent things, and that He acts by His will and His choice: his testimony is not accepted, for he is not upon Islam. As for the people of innovation who agree with the people of Islam but differ on some fundamentals, like the Rafidites, the Qadarites, the Jahmites, the extremists of the Murji'a and their like, these fall into categories.
The first: the ignorant blind follower who has no discernment: he is neither declared a disbeliever nor ruled wicked, and his testimony is not rejected when he was not able to learn guidance; his status is that of the weak among men, women and children who can find no device and are not guided to a way: these, it may be that Allah will pardon them, and Allah was ever Pardoning, Forgiving.
The second: the one able to ask, seek guidance and know the truth, but who leaves it, occupied with his worldly life, his position, his pleasure and his livelihood: he is negligent, deserving of the threat, sinful for neglecting the duty of mindfulness of Allah incumbent on him according to his capacity; his status is that of his like among those who neglect certain obligations. If what is in him of innovation and whim outweighs what is in him of Sunnah and guidance, his testimony is rejected; and if what is in him of Sunnah and guidance outweighs it, his testimony is accepted.
Third category: the one who asks, seeks, and to whom guidance becomes clear, but who leaves it out of conformity and partisanship, or hatred or enmity toward its people: the least of his case is that he be wicked, and declaring him a disbeliever is a matter of independent reasoning and detail. If he is a proclaiming proselytizer, his testimony, his fatwas and his rulings are rejected when there is capacity for that; no testimony, fatwa or ruling of his is accepted except in case of necessity, as when such people prevail and dominate, and the judges, muftis and witnesses are from among them: rejecting their testimony and rulings then would breed much corruption, and it is not possible; they are therefore accepted out of necessity.
Malik, may Allah have mercy on him, expressly stated that the testimony of the people of innovation, such as the Qadarites, the Rafidites and their like, is not accepted, even if they pray our prayer and face our qiblah.
Al-Lakhmi said: that is because of their wickedness; he said: even if it arose from an interpretation in which they erred.
If such is their rejection of the Qadarite's testimony, whose error arises only from an interpretation of the Quran like the Kharijites, what then of the Jahmites, whom many of the predecessors excluded from the seventy-two sects (at-Turuq al-Hukmiyya, p. 253 and 256)?
Imam Ibn al-Qayyim, may Allah have mercy on him, said: on this basis, if the people are all wicked except a rare few, the testimony of some of them against others is accepted, and judgment is passed on the testimony of the most excellent of the wicked, then the next most excellent: this is the correct view upon which practice rests, even if many jurists deny it with their tongues; just as practice rests on the validity of the wicked person's guardianship and the enforcement of his rulings even if they deny it with their tongues; and likewise practice rests on the validity of the wicked person being a marriage guardian and an executor over wealth.
And it is astonishing from one who strips him of that, and returns the guardianship to a wicked person like him or more wicked than him. For the upright person to whom guardianship would pass cannot be found, and the wicked close kin is distinguished by the care of kinship; and the executor is by the testator's choice and preference over others: a wicked person designated by the testator, or distinguished by kinship, is more worthy than a wicked person with none of that; especially since, if the truthfulness of the wicked person preponderates in the mind, his testimony is accepted and judgment is passed by it. Allah, glorified be He, did not command rejecting the wicked person's report: it is therefore not permissible to reject it categorically; rather one verifies it until it becomes clear whether he is truthful or a liar: if truthful, his word is accepted and acted upon, and his wickedness is upon him; if a liar, his report is rejected and no attention is paid to it.
Rejecting the wicked person's report and testimony has two bases: first, lack of trust in him, for his little regard for his religion and the deficiency of awe of Allah in his heart lead him to deliberate lying; second, shunning him for his proclaiming and displaying his wickedness; accepting his testimony nullifies this legally intended purpose.
When the truthfulness of the wicked person's tongue is known, and he is among the most truthful of people even if his wickedness is not lying, there is no ground for rejecting his testimony. The Prophet, may the peace and blessings of Allah be upon him, hired a guide to show him the way to Madinah while he was a polytheist upon the religion of his people; but since he trusted his word, he trusted him, handed him his mount and accepted his guidance.
Asbagh ibn al-Faraj said: when the wicked person testifies before the judge, he is required to suspend the case; and this may be supported by the word of Allah the Most High: « If a wicked person brings you news, verify it » (Surah al-Hujurat, 6).
The crux of the question is that acceptance and rejection of testimony turn upon the preponderance or absence of the presumption of truthfulness.
And the correct, decisively established view is that uprightness is divisible: a man may be upright in one thing and wicked in another; when it becomes clear to the judge that he is upright in what he testifies to, he accepts his testimony, and his wickedness elsewhere does not harm him.
Whoever knows the conditions of uprightness and knows the state of the people, the correct view in this question becomes clear to him, and Allah knows best (at-Turuq al-Hukmiyya, p. 256 and 258).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said: rejecting the testimony of one known for lying is agreed upon among the jurists. And he said: the upright person, in every time, place and group, is according to its context; the witness among every people is whoever is upright among them, even if, were he among others, his uprightness would be of another kind. By this, judgment between people is possible; otherwise, if it were required, for the witnesses of every group, that none testify against them but one who stands firm in fulfilling the obligations and abandoning the forbidden, as the Companions were, all testimonies, or most of them, would be voided. It is tenable that the testimony of those known for truthfulness be accepted, even if they do not adhere to the legal punishments, in case of necessity: such as prison, the incidents of the Bedouins, and the people of the village among whom is not found...
The jurists differed on the ruling of accepting the testimony of the People of the Book against one another: is it valid or not?
The majority of the jurists, the Malikis, the Shafi'is and the Hanbalis in the position of the school, held that the testimony of the People of the Book against one another is not valid, because of the word of Allah the Most High:
« And take as witnesses two just persons from among you. »
Surah at-Talaq, 2
This verse forbids accepting their testimony on two counts: first, they are not upright; second, they are not of us. And Allah the Most High said:
« O you who believe, if a wicked person brings you news, verify it. »
Surah al-Hujurat, 6
The disbeliever is wicked: verification of his report is therefore required, and testimony is weightier than report: the verse therefore requires withholding regarding his testimony. And because of the word of Allah the Most High:
« And Allah will never grant the disbelievers a way over the believers. »
Surah an-Nisa, 141
Allah the Most High denied that the disbelievers have any way over the believers; accepting their testimony against one another establishes a way for the disbelievers over the believers, for the judge would be obliged to rule by their testimony, which is denied. And because uprightness is a condition of accepting testimony, and wickedness is a bar, while disbelief is the head of wickedness: it is all the more a bar to acceptance.
And because of what Abu Hurayrah reported, attributed to the Prophet:
« The testimony of one religious community against another is not valid, except the testimony of the Muslims: it is valid against all communities. »a weak hadith: reported by al-Bayhaqi 20404
And because the Muslim wicked person is more complete than the disbeliever upright in his religion: the acts of worship of the wicked person are valid, and he merits inheritance, which is not valid from the disbeliever, nor does he merit the inheritance of a Muslim; since wickedness bars acceptance of testimony, disbelief is all the more a bar.
From this argument two analogies are distilled: first, whoever's testimony is not accepted against a Muslim, his testimony is not accepted against a non-Muslim, like the wicked person; second, whoever's testimony is rejected for wickedness is rejected for disbelief, like testimony against the Muslim. And because lying bars acceptance of testimony, and lying about Allah the Most High is graver than lying about His servants: since the testimony of one among the Muslims who lied about people is rejected, the disbeliever who lies about Allah is all the more worthy of having his testimony rejected. Allah the Most High described their lying:
« They distort the words from their places. »
Surah al-Ma'idah, 5
« And they utter lies against Allah while they know. »
Surah Al Imran, 75
From this argument two analogies are distilled: first, whoever is branded with lying has his testimony rejected, like the Muslim; second, if lying causes the Muslim's testimony to be rejected, it all the more causes the disbeliever's to be rejected, like lying about people.
And because the deficiency of disbelief is graver than the deficiency of servitude, on two counts: first, the deficiency of disbelief bars the validity of acts of worship, which the deficiency of servitude does not; second, the deficiency of disbelief bars acceptance of report, which the deficiency of servitude does not. Since it is established, by our agreement and Abu Hanifah's, that the deficiency of servitude bars acceptance of testimony, the deficiency of disbelief bars its acceptance all the more. It is in view of these meanings that Abu Hanifah forbade accepting the testimony of idol worshippers, in consideration of the deficiency of disbelief; the same applies to the People of the Book.
From this argument two analogies are distilled: first, it is a testimony barred by servitude: disbelief must therefore bar it, by analogy with the idolater's testimony; second, it is a testimony barred by the idolater's disbelief: the disbelief of the scriptuary must therefore bar it, like testimony against the Muslim (al-Mudawwana al-Kubra 13/157, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/60, Tahbir al-Mukhtasar 5/109, al-Umm 6/141 and 142, al-Hawi al-Kabir 17/61, al-Bayan 13/277 and 278, an-Najm al-Wahhaj 10/283 and 284, Mughni al-Muhtaj 6/370, al-Mughni 10/181 and 182, Sharh az-Zarkashi 3/110, Kashshaf al-Qina 6/528, Sharh Muntaha al-Iradat 6/659, Matalib Uli an-Nuha 6/610 and Manar as-Sabil 3/499 and 500).
The Hanafis and Imam Ahmad in one narration from him, and it is the choice of Shaykh al-Islam Ibn Taymiyyah and Ibn al-Qayyim, held that the testimony of dhimmis against one another is accepted if they are upright in their religion, even if their communities differ: the Jews, the Christians and the Magians subjected to the poll tax (jizyah) and granted the pact of protection; their testimony is not accepted against Muslims, because of the word of Allah the Most High:
« O you who believe, when death approaches one of you at the time of making a bequest, let there be two witnesses, two just men from among you, or two others from besides you, if you are traveling and death's affliction befalls you. »
Surah al-Ma'idah, 106
This verse contains the proof of the permissibility of dhimmi testimony against one another, for it entailed the permissibility of their testimony against Muslims, which is even more strongly permissible among dhimmis. The verse thus established the permissibility of their testimony against dhimmis in bequests during travel; and when its permissibility against Muslims was abrogated by the word of Allah the Most High:
« O you who believe, when you contract a debt for a fixed term, write it down. »
Surah al-Baqarah, 282
up to His word:
« And take as witnesses two witnesses from among your men. »
Surah al-Baqarah, 282
there remained thereby the permissibility of dhimmi testimony against them; His word « or two others from besides you » (Surah al-Ma'idah, 106) was abrogated by that, while the probative force of its indication regarding its permissibility against dhimmis in bequests during travel remained. And since its ruling remains regarding its permissibility against dhimmis for bequests during travel, and regarding its prohibition against Muslims, that entails its permissibility against them for all rights.
Jabir ibn Abdullah, may Allah be pleased with him, reported:
« The Messenger of Allah, may the peace and blessings of Allah be upon him, validated the testimony of the People of the Book against one another. »a weak hadith: reported by Ibn Majah 2374
Abu Dawud reported, by his chain, from Jabir:
« The Jews brought before the Prophet, may the peace and blessings of Allah be upon him, a man and a woman of theirs who had committed fornication. He said: Bring me the two most knowledgeable men among you. They brought him the two sons of Suriyah, and he adjured them: How do you find the case of these two in the Torah? They said: We find in the Torah that, if four (witnesses) testify that they saw his male organ in her private part like the kohl stick in the kohl pot, they are stoned. He said: What then prevents you from stoning them? They said: Our authority has perished, and we dislike killing. The Messenger of Allah, may the peace and blessings of Allah be upon him, then called for the witnesses: four came and testified that they had seen his male organ in her private part like the kohl stick in the kohl pot; the Prophet, may the peace and blessings of Allah be upon him, then ordered them stoned. »an authentic hadith: reported by Abu Dawud 4452
This proves the acceptance of dhimmi testimony against one another, for the two fornicators did not confess, and the Muslims did not testify against them, since they had not witnessed their fornication; and the Prophet, may the peace and blessings of Allah be upon him, in this account, called for the witnesses: four came and testified that they had seen his male organ in her private part like the kohl stick in the kohl pot.
In some transmissions of this hadith: four of them came; and in others: he said to the Jews: « Bring me four of you. »
And because, having accepted the pact of protection, they have what the Muslims have and bear what the Muslims bear; the Muslim testifies for the Muslim: likewise the dhimmi for the dhimmi. Its apparent sense entails that the dhimmi testifies against the Muslim like the Muslim, except that this became particularized out of the generality of the text.
And because pressing need requires safeguarding the rights of dhimmis, and that safeguard is not achieved unless some of them testify for others; there is no doubt that the need to safeguard their rights is pressing, for they only accepted the pact of protection so that their blood be like our blood and their wealth like our wealth.
The proof that the safeguard is not achieved except by mutual testimony is that these transactions abound among them, and the Muslims do not attend their contractual dealings to bear their contingencies; were there no mutual testimony, their rights would be lost in the face of denial and repudiation: need therefore called for protection through testimony.
And because disbelief is not incompatible with guardianship: the disbeliever exercises guardianship over his young children and over the marriage of his daughters; he is all the more not to be barred from testimony, whose conditions are lighter than those of guardianship. And because whoever is upright in his religion has his testimony accepted, like the Muslims.
And because it is a wickedness on the ground of interpretation, it therefore does not bar acceptance of testimony, like the people of rebellion.
It is reported from Umar and Ali, may Allah be pleased with them both, regarding two dhimmis in a debt, that they said: « They are handed over to the people of their religion, that judgment be made between them. » That is a necessity of the permissibility of some of them judging between others, and the predecessors, may Allah have mercy on them, were in consensus on this, to the point that Yahya ibn Aktham, may Allah have mercy on him, said: « I pursued the statements of the predecessors and found none of them who did not permit dhimmi testimony against one another; I only saw from Rabiah two statements on it. »
The meaning is that the disbeliever belongs to guardianship, so he belongs to testimony, like the Muslim.
The clarification of the operative cause lies in the word of Allah the Most High:
« And those who disbelieved: some of them are protectors of others. »
Surah al-Anfal, 73
What is meant is guardianship, not allegiance, for it is conjoined to the word of Allah the Most High: « You have no authority over them at all » (Surah al-Anfal, 72). The proof of it is that marriages are valid among them, and there is no marriage without a guardian; and if the Muslim sues for the minor daughter of a scriptuary and he marries her to him, the marriage is valid. And because the disbeliever belongs to guardianship over himself and his property absolutely: he therefore belongs to guardianship over another when the condition of extending his guardianship to another exists; and testimony is a type of guardianship: if capacity for guardianship is established, capacity for testimony is established. Moreover, what counts is the preponderance of truthfulness, which lies in his refraining from what he deems forbidden in his religion; the disbeliever refrains from that: his testimony is therefore accepted. And the name of uprightness and acceptance is established for the disbeliever in transactions through the qualification of trustworthiness; Allah the Most High so described him in His word:
« Among the People of the Book is he who, if you entrust him with a treasure, returns it to you. »
Surah Al Imran, 75
One may not say: they professed disbelief out of obstinacy, as Allah the Most High said: « And they denied them wrongfully and arrogantly while their souls were convinced of them » (Surah an-Naml, 14); for that concerned the rabbis who were at the time of the Messenger of Allah, may the peace and blessings of Allah be upon him, and who conspired to conceal the sending of the Messenger of Allah, may the peace and blessings of Allah be upon him, and his prophethood: such ones have no testimony according to us. As for others than them, they believe in their disbelief, for they hold that the truth is what they are upon; Allah the Most High said: « And among them are unlettered ones who know not the Book except wishes » (Surah al-Baqarah, 78), and He said: « and indeed a party of them conceals the truth » (Surah al-Baqarah, 146). Through this verification it becomes clear that their wickedness is a wickedness of belief, and it has been explained that this does not make the suspicion of lying in testimony stick. Their testimony is not accepted against Muslims because of the severance of their guardianship from the Muslims; and the testimony of the slave and the child is not accepted because of the absence of capacity and guardianship: thereby it becomes clear that the effect of servitude outweighs the effect of disbelief in the ruling of guardianship. Moreover, they are hostile to the Muslims for an invalid cause, which leads them to seek dominance over the Muslims: hence their testimony is not accepted against the Muslims; as for the apostate, he has guardianship over no one.
As-Sarakhsi, may Allah have mercy on him, said: among our companions, may Allah have mercy on them, are those who say: there is a necessity in accepting mutual testimony; and because the Muslims scarcely attend the transactions of dhimmis, especially marriages and bequests, were mutual testimony not valid therein, it would lead to the annulment of their rights; and we have been commanded to respect their rights and to repel the wrong of some of them from others: for this necessity we accepted mutual testimony, just as we accepted the testimony of women in what men cannot witness; and this necessity is not realized in their testimony against Muslims, nor in their testimony upon a Muslim's testimony or upon the judgment of a Muslim judge (al-Mabsut 16/135 and 136, Ahkam al-Quran 4/163, Bada'i as-Sana'i 6/280 and 281, al-Hidaya 3/124, Sharh Fath al-Qadir 7/416, al-Ikhtiyar 2/179, al-Jawhara an-Nayyira 6/168, al-Lubab 2/458, al-Inaya 10/454, al-Mughni 10/181, al-Muharrar fi al-fiqh 2/281 and al-Mubdi 10/217).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said: those who permitted dhimmi mutual testimony argued from this verse in Surah al-Ma'idah, namely His word: « O you who believe, testimony between you at the time of death, when making a bequest: two just men from among you, or two others from besides you » (Surah al-Ma'idah, 106), to the end of the verse. Then the one who took the apparent sense of this verse among the people of Kufa said: this verse proves the acceptance of dhimmi testimony against Muslims, and there is in that an indication and proof of accepting mutual testimony, a fortiori; and the abrogation of the apparent sense does not entail the abrogation of the higher purport and the indication. This verse is the proof, in the texts of Imam Ahmad and other hadith imams who agree with the predecessors, for acting by this verse and by the hadith that accords with it: it is the more tenable and stronger view. His school is the acceptance of dhimmi testimony against Muslims in bequests during travel, for it is a place of necessity; if their testimony is permissible for others, it is more strongly permissible among themselves.
Hence, in testimony out of necessity, what is not permissible elsewhere becomes permissible: thus the testimony of women is accepted in what men cannot witness, to the point that Ahmad expressly stated the acceptance of the testimony of two women in the legal punishments occurring in their private gatherings, such as bathhouses, courtyards and the like. The disbelievers whom the Muslims do not mix with are all the more worthy of having mutual testimony accepted, when we judge between them, and Allah commanded us to judge between them; and the Prophet, may the peace and blessings of Allah be upon him, stoned the two Jewish fornicators without hearing their confession, nor any Muslim's testimony against them; without acceptance of mutual testimony that would not have been valid; and Allah knows best (Majmu al-Fatawa 15/299 and Zad al-Ma'ad 5/36).
The jurists of the four schools agreed that the testimony of slaves in the legal punishments is not valid; they differed concerning other than the punishments: is it accepted or not?
The majority of the jurists, the Hanafis, the Malikis and the Shafi'is, held that it is not accepted at all, because of His word, the Most High:
« O you who believe, when you contract a debt for a fixed term, write it down. »
Surah al-Baqarah, 282
He then conjoined to it the word of Allah the Most High:
« And take as witnesses two witnesses from among your men. »
Surah al-Baqarah, 282
This proves that freedom is required, in virtue of two indications in the higher purport of the address. First: the word of Allah the Most High: « When you contract a debt for a fixed term » (Surah al-Baqarah, 282) up to His word: « and let the one upon whom is the obligation dictate » (Surah al-Baqarah, 282), which concerns free men, not slaves. The proof is that the slave does not own the contracts of debt; and if he acknowledges something, his acknowledgment is not valid except with his master's permission; the address is directed to one who owns that absolutely, without another's permission: this proves that freedom is a condition of this testimony.
The other indication of the address is the word of Allah the Most High: « from among your men »: the apparent sense of this expression requires free men, like the word of Allah the Most High:
« And marry the unmarried among you. »
Surah an-Nur, 32
meaning the free. Do you not see that He conjoined to it His word: « and the righteous among your male slaves and female slaves » (Surah an-Nur, 32)? The slaves thus do not enter the word of Allah the Most High: « among you » (Surah an-Nur, 32). Therein is proof that freedom is a condition of this testimony and that a slave's testimony is not valid, for Allah's commands, the Most High, carry obligation, and He commanded taking witnesses from free men: none else is permissible. It is not permissible for anyone to drop the condition of freedom, for if that were permissible, dropping the condition of number would be too; and therein is proof that the verse contained the invalidity of slaves' testimony (Ikhtilaf al-Ulama 1/281 and 282, Mukhtasar Ikhtilaf al-Ulama 3/335 and 336, Ahkam al-Quran 2/221 and 222, Sharh Sahih al-Bukhari 8/36, at-Taj wa al-Iklil 5/106, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/60, Tahbir al-Mukhtasar 5/109, al-Hawi al-Kabir 17/58 and 59, al-Bayan 13/276 and 277, an-Najm al-Wahhaj 10/285 and Mughni al-Muhtaj 6/370).
The Hanbalis held that the testimony of slaves is accepted in other than the legal punishments and retaliation (qisas).
Imam Ibn Hubayrah, may Allah have mercy on him, said: they agreed that slaves' testimony is not valid at all, except Ahmad: he permitted it in other than the punishments and retaliation, according to the well-known position of his school (al-Ifsah 2/415).
Imam Ibn Rushd, may Allah have mercy on him, said: as for freedom, the majority of the jurists of the great cities make it a condition in accepting testimony, while the people of the apparent sense (Zahiris) said: a slave's testimony is valid, for the basis is only the condition of uprightness, and servitude has no effect in rejection unless that is established from the Book of Allah, the Most High, the Sunnah or consensus; and the majority seemingly regarded servitude as a trace of disbelief, so it was bound to have an effect in rejecting testimony (Bidayat al-Mujtahid 2/347).
Ibn Qudamah, may Allah have mercy on him, said: question. Al-Khiraqi said: a slave's testimony is valid in everything except the legal punishments; and the testimony of a female slave is valid in what women's testimony is valid in.
The discussion of this question is in three sections. First: on accepting a slave's testimony in other than the punishments and retaliation: the position of the school is that it is accepted; this is related from Ali and Anas, may Allah be pleased with them both.
Anas said: « I never knew anyone who rejected a slave's testimony »; and this is the view of Urwah, Shurayh, Iyas, Ibn Sirin, al-Batti, Abu Thawr, Dawud and Ibn al-Mundhir.
Ata, Mujahid, al-Hasan, Malik, al-Awzai, ath-Thawri, Abu Hanifah, al-Shafi'i and Abu Ubayd said: his testimony is not accepted, for he lacks dignity (muru'ah), and because testimony is built upon completeness and is not divisible: the slave does not enter it, like inheritance.
Ash-Shabi, an-Nakhai and al-Hakam said: it is accepted in the slight matter.
Our proof is the generality of the verses of testimony: he falls under them, for he is of our men, and he is upright: his narration, his fatwas and his religious reports are accepted.
Uqbah ibn al-Harith related:
« I married Umm Yahya, daughter of Abi Ihab. A black slave woman came and said: I suckled you both. I mentioned that to the Messenger of Allah, may the peace and blessings of Allah be upon him, and he said: And how, when she has claimed that? »reported by al-Bukhari and Muslim (agreed upon); variant of Abu Dawud
In Abu Dawud's version: I said: O Messenger of Allah, she is lying. He said: « And what do you know, when she has said what she said? Leave her. » And because he is upright and not suspected: his testimony is accepted like the free man's.
We do not concede that he lacks dignity: he is like the free man, divided between those with dignity and those without; there may be among them amirs, scholars, the righteous and the devout. Iyas ibn Mu'awiyah was asked about slaves' testimony and said: shall I reject the testimony of Abd al-Aziz ibn Suhayb? Among them was Ziyad ibn Abi Ziyad, the client of Ibn Abbas, among the ascetic scholars; Umar ibn Abd al-Aziz raised his standing and honored him. Among them was Ikrimah, the client of Ibn Abbas, one of the reliable scholars. And many of the client scholars were slaves or sons of slaves; manumission produced nothing in them but freedom, and freedom does not change character nor produce knowledge or dignity. None is accepted from them but one possessed of dignity; and it is not valid...
The generality of the jurists, the Hanafis, the Malikis, the Shafi'is and the Hanbalis, expressly made it a condition for the witness to be alert and retentive of what he testifies to: the testimony of the heedless and of one known for abundant error and forgetfulness is not accepted, for trust is not achieved by his word, because his testimony may be among what he erred and lapsed in; and because he may testify against other than the one he was asked about, or to other than what he witnessed, or for other than the one who charged him.
The Hanafis said: the condition of acceptance for testimony is that the witness be alert, retaining what he hears, and precise in what he delivers (Ahkam al-Quran 2/234 and the commentary of Ibn Abidin 7/93).
The Malikis said: the witness is required not to be heedless: the testimony of the heedless is not accepted except in a matter that admits no confusion, like his saying: « I saw this man kill this one, or put out his eyes, or cut off his hands », and the like of actions; and like his saying: « I heard this man divorce his wife so-and-so, or insult so-and-so », and the like of sayings.
Ibn Abd al-Hakam said: the kindly, excellent man may be weak, unreliable on account of his heedlessness, being imposed upon: his testimony is not accepted unless the matter testified to is manifest, clear and evident, confusing to no one, like his saying: « I saw this man cut off this one's hand », and the like: the heedless man's testimony is accepted in such a case.
As for the dull-witted, his testimony is not valid at all. The difference between the heedless and the dull-witted is that the heedless possesses a faculty, that is, an alerting force, but does not employ it, while the dull-witted has no faculty at all (at-Taj wa al-Iklil 5/111, Sharh Mukhtasar Khalil 7/179, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/64 and Tahbir al-Mukhtasar 5/112 and 113).
The Shafi'is said: the witness is required to be precise, not heedless, for lack of trust in his word, unless he explains the cause, such as an acknowledgment, with its time and place: it is then accepted of him. Slight error does not impair testimony, for none of the people is safe from it; whoever is dominated by error and forgetfulness has his testimony rejected, and whoever's errors and precision are equal is like one dominated by error.
It is recommended to question in detail a witness about whom something perplexed the judge, like most of the common people, even if they are upright; if he does not detail, the judge must investigate his condition (an-Najm al-Wahhaj 10/324, Mughni al-Muhtaj 6/387 and Nihayat al-Muhtaj 8/358).
The Hanbalis said: the witness is required to be alert and retentive of what he testifies to: the testimony of the heedless and of one known for abundant error and forgetfulness is not accepted, for trust is not achieved by his word, because his testimony may be among what he erred and lapsed in; and because he may testify against other than the one he was asked about, or to other than what he witnessed, or for other than the one who charged him.
The testimony of one in whom error and lapse are infrequent is accepted, for none is safe from an occasional error and from forgetfulness (al-Mughni 10/168, Kashshaf al-Qina 6/529, Sharh Muntaha al-Iradat 6/658 and Manar as-Sabil 3/499).
The people of knowledge are in consensus that uprightness is required of the witness, because of the word of Allah the Most High:
« And take as witnesses two just persons from among you. »
Surah at-Talaq, 2
And His word: « such as you approve as witnesses » (Surah al-Baqarah, 282); approval is directed to the upright and negated of the wicked.
As for withholding regarding the wicked person's testimony, it is because of the word of Allah the Most High:
« O you who believe, if a wicked person brings you news, verify it, lest you harm a people in ignorance and become regretful over what you did. »
Surah al-Hujurat, 6
The news is the report; every testimony is a report, though not every report is a testimony. And because of the word of Allah the Most High:
« Is one who was a believer like one who was wicked? They are not equal. »
Surah as-Sajdah, 18
The prohibition of equality, if it entails accepting the upright, entails rejecting the wicked. And from Amr ibn Shuayb, from his father, from his grandfather, attributed to the Prophet:
« The testimony of a betrayer, male or female, is not valid, nor that of one bearing rancor against his brother. »a good hadith (hasan): reported by Abu Dawud 3601, Ibn Majah 2366, Ahmad 2/208 and ad-Daraqutni 4/244
A large number of scholars related the consensus that uprightness is required for testimony and that the wicked person's testimony is not accepted. Imam Ibn Battal, may Allah have mercy on him, said: the scholars are in consensus on rejecting the wicked person's testimony (Sharh Sahih al-Bukhari 7/179). Imam al-Mawardi, may Allah have mercy on him, said: there is no disagreement on rejecting the wicked person's testimony, by the text (al-Hawi al-Kabir 17/272).
Imam Ibn Rushd, may Allah have mercy on him, said: as for uprightness, the Muslims agreed on requiring it in accepting a witness's testimony, because of the word of Allah the Most High: « such as you approve as witnesses » (Surah al-Baqarah, 282), and the word of Allah the Most High: « And take as witnesses two just persons from among you » (Surah at-Talaq, 2). They differed: what is uprightness? The majority said: it is a quality beyond Islam: that one be committed to the obligations and recommended acts of the Law, avoiding the forbidden and the disliked. Abu Hanifah said: the outward appearance of Islam suffices for uprightness, along with no known disqualifying flaw.
The cause of the disagreement, as has been said, is their hesitation over the concept of the name of uprightness as opposed to wickedness. Thus they agreed that the wicked person's testimony is not accepted, because of the word of Allah the Most High: « O you who believe, if a wicked person brings you news » (Surah al-Hujurat, 6), to the end of the verse. And they did not differ that the wicked person's testimony is accepted if his repentance is known, except one whose wickedness arose from calumny: Abu Hanifah says his testimony is not accepted even if he repents. The majority say: it is accepted.
The cause of the disagreement: does the exception in the word of Allah the Most High:
« Never accept their testimony; those are the wicked ones, except those who repent after that. »
Surah an-Nur, 4 and 5
revert to the nearest mentioned or to the whole sentence, apart from what consensus particularized, namely that repentance does not lift the punishment from him (Bidayat al-Mujtahid 2/346)?
Ibn Qudamah, may Allah have mercy on him, said: there is no disagreement on requiring it: uprightness is required in all testimonies; here, with added precaution, it is more strongly required. The testimony of the wicked person is not accepted, nor that of one whose condition is unknown, whose uprightness is not known, for he may be wicked (al-Mughni 9/65). He also said: they agreed that they are required to be Muslims, upright outwardly and inwardly, whether the one testified against is a Muslim or a dhimmi (al-Mughni 10/155).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said: the jurists agree that if a witness testifies before the judge while a type of disqualifying wickedness has spread about him, it is not permissible to accept his testimony, and it is permissible for anyone to impugn him for it, even without having seen it (Majmu al-Fatawa 28/371). He also said: the wicked person's testimony is rejected by the text of the Quran and the agreement of the Muslims; some of them permit the most excellent of the wicked, then the next, in case of necessity when no upright persons and the like are found. As for accepting the wicked person's testimony without cause, none of the Muslims has said it (Mukhtasar al-Fatawa al-Misriyya, p. 604).
Shaykh al-Islam Ibn Taymiyyah, may Allah have mercy on him, said: rejecting the testimony of one known for lying is agreed upon among the jurists. And he said: the upright person, in every time, place and group, is according to its context; the witness among every people is whoever is upright among them, even if, were he among others, his uprightness would be of another kind... And this view has foundations, among them: dhimmi testimony, and the testimony of children and women in what men cannot witness; and the conditions in the Quran concern the assumption of testimony, not its delivery (al-Fatawa al-Kubra 4/641 and 642).
The Malikis said: if finding the upright person described by those qualities is impossible or difficult, as in our age, one suffices with one whose lying is not known, out of necessity; and it has been said: he is compensated by an increase in number (the commentary of ad-Dasuqi on al-Sharh al-Kabir 6/62 and the commentary of as-Sawi on al-Sharh as-Saghir 9/329).
The jurists required the witness to be speaking; and they differed over the mute person's testimony when it is understood: is it accepted or not?
The majority of the jurists, the Hanafis, the Shafi'is in the more correct view and the Hanbalis, held that the mute person's testimony is not valid even if his gesture is understood: his gesture was set in place of expression in a place of necessity, namely marriage and divorce, for these are obtained only from him; and we have no need of his testimony, for it is valid from another through speech: it is therefore not valid through his gesture, like the gesture of the speaking person. Confirming this: testimony requires certainty, hence the nod of the speaking person is not sufficient, and certainty is not achieved by gesture; his gesture was accepted only in his own particular rulings out of necessity, and there is no necessity here. This is also why he may not be a judge: the judge's ruling is executed only when found in his own writing under his seal; his ruling was not recorded, and the witness does not testify merely from seeing his writing: all the more reason judgment is not passed on another's writing (Mukhtasar Ikhtilaf al-Ulama 3/369, al-Mabsut 16/130, Bada'i as-Sana'i 6/268, al-Muhadhdhab 2/324, Rawdat at-Talibin 7/397, Mughni al-Muhtaj 6/371, al-Ifsah 2/416, al-Mughni 10/185 and 186, al-Kafi 4/521, Kashshaf al-Qina 6/528, Sharh Muntaha al-Iradat 6/658 and Manar as-Sabil 3/449).
However, the Hanbalis said: it is accepted of him if he delivers it in his writing, not by gesture, because writing indicates the words.
As for arguing from the gesture of the Prophet, may the peace and blessings of Allah be upon him, it does not hold: the Prophet, may the peace and blessings of Allah be upon him, was able to speak, and his gesture was acted upon in prayer; and if a speaking person testified by nod and gesture, it would not be valid by consensus: it is thus established that testimony is unlike other rulings.
The Malikis and the Shafi'is, in the view opposite the more correct one, held that the mute person's testimony is valid if his gesture is understood, and that it stands in place of the wording of testimony: for testimony is knowledge the witness delivers to the judge; if it is understood of him by a way such as his case is understood by, it is accepted, like the speaking person delivering it by voice. And because it is a meaning requiring speech for understanding to occur: if speech is impossible, the gesture may stand in its place when understanding occurs through it; its basis is acknowledgment and divorce, where it stands in place of his speech in his rulings of divorce, marriage, zihar and ila; likewise in his testimony. And because the Prophet, may the peace and blessings of Allah be upon him, while seated in prayer, gestured to the people, who were standing, to sit, and they sat (Sharh Sahih al-Bukhari 7/459, al-Ishraf 5/64 and 65, hadith 1823, at-Taj wa al-Iklil 5/111, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/64, Tahbir al-Mukhtasar 5/112, al-Muhadhdhab 2/324 and Rawdat at-Talibin 7/397).
Imam al-Imrani, may Allah have mercy on him, said: and they agreed that their testimony is not accepted against a Muslim (al-Bayan 13/277). Imam Ibn Rushd, may Allah have mercy on him, said: as for Islam, they agreed that it is a condition of acceptance, and that the disbeliever's testimony is not valid (Bidayat al-Mujtahid 2/347). Ad-Damiri, may Allah have mercy on him, said: the disbeliever's testimony against a Muslim is not valid, by consensus (Tahbir al-Mukhtasar 5/109). For the disbeliever is not of us, nor of our men; and because, if the testimony of the wicked among the Muslims is not accepted, it is all the more impermissible for the disbelievers to testify against anyone (Mukhtasar Ikhtilaf al-Ulama 3/339 and 340, Ahkam al-Quran 4/159 and 160, al-Mudawwana al-Kubra 13/156 and 157, Sharh Sahih al-Bukhari 8/73, al-Kafi, p. 476, Bidayat al-Mujtahid 2/347, al-Sharh al-Kabir with the commentary of ad-Dasuqi 6/60, Tahbir al-Mukhtasar 5/109, al-Umm 6/141 and 142, al-Hawi al-Kabir 17/61, al-Bayan 13/277 and 278, an-Najm al-Wahhaj 10/283 and 284, Mughni al-Muhtaj 6/370, al-Mughni 10/181 and Manar as-Sabil 3/449).
The jurists differed over a disbeliever's testimony when he testifies to the bequest of a traveler who died on his journey: is it accepted or not?
The Hanbalis held that, if two witnesses from among the dhimmis testify to the bequest of the traveler who died on his journey, their testimony is accepted if no others are found among the Muslims, and they are sworn after the afternoon prayer (al-Asr): we did not betray, nor conceal, nor purchase by it a price, even for a near relative; and: we shall not conceal Allah's testimony, for then we would indeed be among the sinners; because of the word of Allah the Most High:
« O you who believe, when death approaches one of you at the time of making a bequest, let there be two witnesses, two just men from among you, or two others from besides you, if you are traveling and death's affliction befalls you. »
Surah al-Ma'idah, 106
This is the text of the Book, and the Messenger of Allah, may the peace and blessings of Allah be upon him, judged by it, and so did his Companions. Ibn Abbas related:
« A man of Banu Sahm went out with Tamim ad-Dari and Adi ibn Badda; the Sahmi man died in a land where there was no Muslim. When they came back with his estate, they had lost a silver cup edged with gold; the Messenger of Allah, may the peace and blessings of Allah be upon him, made them both swear. Then the cup was found in Makkah, and they said: we bought it from Tamim and Adi. Two men of his heirs stood up and swore: our testimony is more worthy than their testimony, and the cup belongs to our companion (Surah al-Ma'idah, 107). He said: it was concerning them that this verse was revealed: O you who believe, testimony between you... »reported by al-Bukhari 2628 and Abu Dawud 3606
From ash-Shabi:
« A Muslim was at the point of death at Daquqa and found no Muslim to witness his bequest, so he had two men of the People of the Book witness it. They came to Kufa, went to al-Ashari and informed him, bringing the estate and the bequest. Al-Ashari said: this is a matter that had not occurred since what happened in the time of the Messenger of Allah, may the peace and blessings of Allah be upon him. He made them swear after the afternoon prayer: they had not betrayed, nor lied, nor altered, nor concealed, nor changed; and that it was indeed the man's bequest and his estate; and he executed their testimony. »an authentic hadith: reported by Abu Dawud 3605
Interpreting the verse as meaning other than your tribe is not valid, for the verse was revealed concerning the case of Adi and Tamim, without disagreement among the exegetes; and Said ibn al-Musayyib, al-Hasan, Ibn Sirin, Ubayda, Said ibn Jubayr, ash-Shabi, Sulayman at-Taymi and others interpreted it as has been said; and the hadiths that have been related indicate it. And because, if what they advanced were valid, the oaths would not be due, for the two Muslim witnesses have no collective oath (qasama) upon them. And because it is not valid to construe it as concerning the assumption of testimony, for it is a command to make them swear, and there are no oaths in assumption. And because it is not valid to construe it as concerning the oath, by His word: « they will swear by Allah, if you doubt: we shall not exchange it for a price, even if he be a near relative, and we shall not conceal Allah's testimony » (Surah al-Ma'idah, 106), to the end of the verse; and because He conjoined it to the two upright believers, and they are two witnesses.
Abu Ubayd related in an-Nasikh wa al-Mansukh that Ibn Mas'ud judged by it in the time of Uthman. Ahmad said: the people of Madinah do not have the hadith of Abu Musa, so how would they know it? This ruling is thus established by the Book of Allah, the judgment of the Messenger of Allah, may the peace and blessings of Allah be upon him, the judgment of the Companions therein, and their acting by what is established in the Book and the Sunnah: recourse to it and acting by it is therefore required, whether it accords with analogy or contradicts it (al-Mughni 10/180 and 181, al-Kafi 4/521 and 522, Majmu al-Fatawa 15/299, I'lam al-Muwaqqi'in 1/91 and 92, Sharh az-Zarkashi 3/401 and Manar as-Sabil 3/500).
The majority of the jurists, the Hanafis, the Malikis and the Shafi'is, held that a disbeliever's testimony against a Muslim is not accepted, neither in travel nor in residence, neither in a bequest nor elsewhere; and that regarding the word of Allah the Most High: « O you who believe, when death approaches one of you at the time of making a bequest, let there be two witnesses, two just men from among you, or two others from besides you, if you are traveling and death's affliction befalls you » (Surah al-Ma'idah, 106), two answers are given. The first: it is abrogated by the word of Allah the Most High:
« And take as witnesses two just persons from among you. »
Surah at-Talaq, 2
The second: what is meant by His word: « or two others from besides you » (Surah al-Ma'idah, 106), is: other than your tribe; this is because enmity between the tribes in the pre-Islamic age was manifest, so Allah the Most High made clear that it is of no account after Islam, and that their testimony against one another is accepted. Do you not see that Allah the Most High said: « Detain them after the prayer, and they will swear by Allah » (Surah al-Ma'idah, 106): and this concerns only the Muslims, who pray. And the hadith is authentic, that the Prophet, may the peace and blessings of Allah be upon him, said: « The testimony of the people of one community against the people of another community is not accepted, except the Muslims: their testimony is accepted against the people of all communities. » And the reason their testimony is not accepted against us in other rights is the severance of their guardianship from us, and this reason exists in the bequest; and the reason their testimony is not accepted for a Muslim's bequest outside the travel situation exists in the travel situation (al-Mabsut 30/152 and 153, Mukhtasar Ikhtilaf al-Ulama 3/339 and 340, Ahkam al-Quran 4/159 and 160, al-Mudawwana al-Kubra 13/156 and 157, Sharh Sahih al-Bukhari 8/73, Bidayat al-Mujtahid 2/347, al-Umm 6/141 and 142, al-Hawi al-Kabir 17/61 and al-Bayan 13/277 and 278).
his probity would then be of another order, and it is through this that judgment between people becomes possible. Otherwise, if it were required, for the witnesses of every group, that none testify against them except one who stands firm in fulfilling the obligations and abandoning the forbidden, as the Companions used to be, all testimonies, or most of them, would be invalidated.
He also said: it may be argued that the testimony of those known for truthfulness is to be accepted, even if they are not committed to the prescribed rules, in cases of necessity, such as imprisonment, incidents among the Bedouins, and the people of a village in whom no upright witness is to be found. This has foundations, among them: the testimony of the non-Muslims under protection, the testimony of children and women in what men do not witness, and the fact that the conditions in the Qur'an concern the undertaking of testimony, not its delivery (al-Fatawa al-Kubra 4/641 and 642).