Islamic Fiqh > Judgment and testimony > Testimony (chahada) > The witness's probity and the wording of testimony
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Updated on 24 September 2026 at 12:48 AM
This section is part of the full chapter: All sections of this chapter.
Probity, according to the generality of the fuqaha, lies in uprightness of religion: fulfilling the obligations, avoiding the major sins and not persisting in the minor ones, and avoiding what undermines dignified character, that is, the vile words and deeds that demean a person.
Probity does not consist in a man purifying his obedience to the point that no disobedience taints it, for that is unattainable and beyond one's capacity; rather, one whose obedience is the greater and prevailing part of his state, who avoids the major sins and is careful to abandon the minor ones, he is the upright witness.
The Hanafis say: the description of the upright witness is that he avoids the major sins, does not persist in the minor ones, and his uprightness is greater than his corruption and his correctness greater than his error.
Thus the testimony of one whose good deeds prevail over his bad deeds is accepted, if he is among those who avoid the major sins, even if he has touched upon a sin; for anyone below the prophets (peace be upon them) is not free of committing a fault. If testimony were only received from one who has no fault at all, the existence of such a witness in this world would become impossible; allowance was therefore made in this regard, and what prevails was taken into account.
This is the definition of the probity that is taken into account: one must necessarily guard against all the major sins, and once one has guarded against them, what prevails is considered. Whoever's disobediences are many, it affects his testimony; whoever's disobedience is rare, his testimony is accepted; for requiring the avoidance of everything would shut the door of testimony, whereas it is open to keep rights alive.
In sum: whoever commits a major sin, or persists in a minor one, forfeits his probity (al-Jawhara an-Nira 6/145 and 169).
The Malikis say: probity is religious vigilance in avoiding lying and the major sins, in guarding against the minor sins, in fulfilling the trust and treating people well, and it is not tainted with innovation.
Probity does not consist in a man purifying his obedience to the point that no disobedience taints it, for that is unattainable and none achieves it except the allies of Allah and the truthful; rather, one whose obedience is the greater and prevailing part of his state, who avoids the major sins and is careful to abandon the minor ones, he is the upright witness (Jami' al-Ummahat, p. 469; Mawahib al-Jalil 8/134; at-Taj wa al-Iklil 5/107; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/61 and 62; Tahbir al-Mukhtasar 5/110).
The Shafi'is say: probity consists in avoiding every major sin of all its types, avoiding persistence in a minor sin or minor sins, of one type or several, and in possessing dignified character, that is, adopting the conduct of one's peers that is not demeaning in one's time and place, for customary matters differ most often in that regard (an-Najm al-Wahhaj 10/287 and 289; Mughni al-Muhtaj 6/371; ad-Daybaj 4/491 and 497).
The Hanbalis defined probity as: the evenness of a person's condition in his religion, and the soundness of his words and deeds. Two things are considered for it:
The first: uprightness in religion, which is of two kinds: fulfilling the obligations, prayer and its regular supererogatory prayers, zakat, fasting, pilgrimage and others; and testimony is not accepted from one who persistently abandons the regular supererogatory prayers.
The second kind: avoiding the forbidden, by committing no major sin and persisting in no minor sin.
The major sin is what carries a fixed punishment in this world, like fornication and drinking intoxicants, or a threat in the Hereafter, like consuming the orphan's property, usury, false testimony, mistreatment of parents and the like.
The minor sin is whatever of the forbidden falls below that.
The second thing considered for probity: practicing human dignified character, by doing what customarily adorns and beautifies him, such as good character, generosity, spending one's influence, being a good neighbor and the like, and abandoning what customarily stains and dishonors him, among the vile things that demean him (al-Mughni 10/169 and 170; Kashshaf al-Qina' 6/529 and 531; Sharh Muntaha al-Iradat 6/661 and 667; Manar as-Sabil 3/501 and 502).
The fuqaha have differed on the ruling of children's testimony among themselves: is it valid or not?
The Malikis and Imam Ahmad, in one narration, hold that children's testimony among themselves is valid for wounds and head injuries, and is not valid against others; it is valid only among themselves, for wounds alone, before they disperse, are manipulated or are taught. If they disperse, they have no testimony, unless upright witnesses other than them had their testimony recorded before they dispersed. Only the testimony of the free males among them is valid; the testimony of the slave girls among the children is not.
And the testimony of the free males among them is valid only where adults are not present, for there is no need for them when men are present. Their testimony is valid for wounds and head injuries only so long as they have not dispersed, been manipulated, or given contradictory statements; as when some children among them testify against a boy that he wounded a boy, and two others testify that someone other than him, among the children, inflicted that very wound on him. If they disperse, no testimony is accepted from them, unless upright men testify to their testimony before they disperse.
Their testimony is not accepted against a man attesting that he wounded a boy, nor against a boy attesting that he wounded a man. If six children gather and drown one of their own, who dies, and two of them testify against the three that they drowned him, while the three testify against the two that they drowned him, the blood money rests on their paternal groups, divided into fifths: one fifth of the blood money upon the paternal group of each child, for each one wards it off from himself, and the testimony of some against others is not accepted.
There is no disagreement that no oath is sworn together with the testimony of a single child, neither for accidental wounds nor for accidental killing.
The proof for accepting their testimony is the consensus of the Companions: it is transmitted from 'Ali, Ibn az-Zubayr and Mu'awiya, with no dissenter. It is transmitted that 'Ali (may Allah be pleased with him) used to act upon the first testimony of children; the like is transmitted from Ibn az-Zubayr, and from Mu'awiya that he used to validate the testimony of some against others as long as they did not enter the houses and get taught.
From Abd Allah ibn Abi Mulayka:
"I sent to Ibn 'Abbas (may Allah be pleased with them both) to ask him about children's testimony. He said: Allah the Most High said: 'of those you accept as witnesses' (surah al-Baqarah 282), and they are not of those we accept. He said: I then sent to Ibn az-Zubayr to ask him, and he said: it is most likely, if they are asked, that they speak the truth. He said: I never saw the judiciary act except upon what Ibn az-Zubayr said."reported by al-Hakim in al-Mustadrak 3131; he said: chain authentic according to the condition of the two shaykhs, which they did not report
It was thus a consensus. Testimony is further considered in situations of necessity: just as the testimony of women alone was permitted for childbirth, since it is a situation men do not attend, likewise the gathering of children in their play and their throwing games is hardly ever attended by men: out of necessity, it is therefore permissible to accept the testimony of some against others before they disperse, suspicion being absent from them, and it is not valid after their dispersal, suspicion then attaching to them.
Necessity therefore calls for accepting it: were we not to accept it, this would lead to forbidden outcomes. Either prevent them from what we have encouraged teaching and training them in, such as combat, wrestling and the like, for they must inevitably be alone by themselves in practicing it, and wounds may occur among them, which is not sound, for no one prevents them; or permit it, and then their blood would be shed with impunity, which is not sound either; or that men be present with them to watch them, which involves hardship and difficulty; or oblige them to do of it only what leads to no wounds and no killing, which cannot be regulated even for adults, let alone for children. Since all of this is void, accepting their testimony becomes obligatory. Nothing of tearing garments or the like follows from this, for property is of a lower rank than blood: just as no judgment by qasama is given in it despite the circumstantial evidence. And because, once they disperse, they are manipulated, coached and learn to lie (al-Ishraf 'ala Nukt Masa'il al-Khilaf 5/41 and 43, no. 1807; Sharh Sahih al-Bukhari 8/51 and 52; al-Kafi, p. 470 and 471; al-Istidhkar 7/124 and 126; Bidayat al-Mujtahid 2/346 and 347; Tafsir al-Qurtubi 3/391; al-Qawanin al-Fiqhiyya, p. 202; al-Kafi 4/521; Manar as-Sabil 3/499).
Imam Malik reported from Hisham ibn 'Urwa:
"Abd Allah ibn az-Zubayr used to judge by the testimony of children among themselves in wounds."reported by Malik in al-Muwatta 2/762
Malik said: the matter agreed upon among us is that children's testimony is valid for what occurs among them of wounds, and is not valid against others; their testimony is valid only among themselves and only for wounds, and is not valid for anything else, provided this is before they disperse, are manipulated or are taught; if they disperse, they have no testimony, unless they had upright witnesses attest to their testimony before they dispersed (al-Muwatta 2/762).
It appears in al-Mudawwana al-Kubra: I said: what do you think of Malik's statement that children's testimony among themselves is valid as long as they do not disperse, or an adult does not enter among them, or they are not manipulated, in what does that apply? (He said:) in wounds and killing: if two or more testify in it before they disperse, and they are all children; the testimony of one is not valid in it; the testimony of females among the children is not valid either, in wounds among themselves; and children's testimony is not valid for an adult, whether they testified for him against a child or against an adult; and there is no qasama among the children, of some against others, unless an adult man kills a child and a man testifies to his killing: the qasama then falls upon what the witness testifies to, whether intentional or accidental.
Sahnun said: more than one of the senior companions of Malik have said that their testimony is not valid in killing, and that the testimony of females is not valid; and a senior companion of Malik, al-Makhzumi, said that the females are acceptable and that children's testimony in killing is valid.
Sahnun said: Ibn Nafi' and others said, concerning the boy against whom children testify that he struck or wounded a boy, then jumped upon his wound and died of it: the heirs of the blood swear an oath that he died of his striking, and they are entitled to the blood money. Ibn Wahb mentioned that 'Ali ibn Abi Talib, Shurayh, Abd Allah and 'Urwa ibn az-Zubayr, Ibn Qusayt, Abu Bakr ibn Hazm and Rabi'a used to validate children's testimony among themselves as long as they did not disperse and return to their families, or contradict one another; and their first statements are acted upon (al-Mudawwana al-Kubra 13/163).
The majority of the fuqaha, the Hanafis, the Shafi'is and the Hanbalis according to the school, hold that legal majority is a condition for the validity of testimony: children's testimony is therefore not valid under any circumstances, neither in property nor in wounds. They argue for its invalidity as follows:
By the word of Allah the Most High: "O you who believe, when you contract a debt for a fixed term" (surah al-Baqarah 282), which addresses adult men, for children do not have the capacity to contract debts; by the word of Allah the Most High: "and let the one upon whom is the obligation dictate" (surah al-Baqarah 282), in which the child is not included, for his acknowledgment is not valid; by His word: "and let him fear Allah, his Lord, and not diminish anything of it" (surah al-Baqarah 282), which cannot address the child, for he is not among those bound by religious obligation for the threat to reach him; then by His word: "and take two witnesses from among your men" (surah al-Baqarah 282), and children are not among our men, and since the opening of the address mentions adults, His word "from among your men" refers back to them; then His word "of those you accept as witnesses" (surah al-Baqarah 282) likewise precludes the validity of a child's testimony; likewise His word: "and let no witnesses refuse when they are called upon" (surah al-Baqarah 282) is a prohibition, and the child may refuse to establish testimony, and the claimant cannot compel him to attend; then His word: "and do not conceal testimony; whoever conceals it, his heart is sinful" (surah al-Baqarah 283) cannot address minors, so the sin does not attach to them for concealing it.
And since liability cannot attach to him upon retraction, this indicates that he is not among those qualified to testify, for whoever's testimony is valid incurs liability upon retraction.
As for permitting their testimony in wounds specifically, and before they disperse and return, it is an arbitrary claim without proof, and a distinction between cases where there is no difference either in effect or in reasoning; for the principles establish that whoever's testimony is valid in wounds is valid in everything else.
As for considering their state before they disperse and return, it is meaningless: it is possible that these witnesses are themselves the offenders, and that what drives them to testify is fear of being held to account. This is well known of children's habits: when an offense comes from them, the child lays it on another for fear of being held to it.
Allah the Most High further made probity a condition of testimony and pronounced upon the false witness the threat He pronounced, and He forbade accepting the testimony of the depraved and of whoever is not restrained from lying, out of precaution for the institution of testimony. How could the testimony of one who is not held to account for his lies be valid, who has no restraint holding him back from lying, no modesty deterring him, and no dignified character preventing him? People even make the lying of children proverbial and say: this one lies more than a child. How can the testimony of one in such a state be accepted? If their state before their dispersal and before others teach them was considered only on the ground that he does not deliberately lie without another's coaching, that is not as assumed: they do deliberately lie, with nothing to prevent them, and they know lying as they know truthfulness once they have reached the threshold at which they can assume the meaning of testimony and the expression of what they witnessed; they may deliberately lie for incidental reasons, among them their fear that the offense be attributed to them, or the intent to harm the person testified against, and for other reasons known of their states. It is therefore for no one to judge their testimony truthful before they disperse, just as it is not so judged after dispersal. Moreover, were it so, and were it established knowledge that they do not lie and do not deliberately give false testimony, then the testimony of females ought to be accepted as that of males, and the testimony of one as that of a group; but since number is considered in this, and what must be considered in testimony, namely its restriction, for wounds, to males rather than females, it is obligatory to fulfill its remaining conditions for it: legal majority and probity. And since the testimony of some against others is permitted, it ought to be permitted against men, for the testimony of some against others is not weightier than testimony against men, since they have, in the view of the holder of this opinion, the standing of Muslims.
And because Allah the Most High commanded us to accept the testimony of those witnesses we accept; yet these are not among those we accept. Allah only commanded us to accept the testimony of one we accept, and whose testimony we accept, we accept it when he gives it, in the setting in which he gives it, after it and in every state.
And because the Prophet (peace and blessings of Allah be upon him) said:
"The pen is lifted from three: from the child until he attains puberty, from the sleeper until he wakes, and from the insane until he recovers."authentic hadith; cited earlier
Since the pen is lifted from him regarding his own right when he makes an acknowledgment, it is more fitting that it be lifted regarding others when he testifies.
And because testimony in property is lighter than in blood: if it is not accepted from them in property, then a fortiori it is not accepted in blood.
And because, if their being apart from men made the testimony of some against others admissible, then the gathering of women in the bathhouses and at weddings would make the testimony of some of them against others admissible; yet it is not accepted despite necessity, even though it is permitted to accept them with men in property: the children, whose testimony is not accepted with men present, are therefore a fortiori not accepted when alone. By this their argument falls. And the judgment of Ibn az-Zubayr, given the disagreement of Ibn 'Abbas, prevents the consensus from forming.
And analogy is with Ibn 'Abbas, for whoever's testimony is not accepted in property is not accepted in wounds, like the depraved (Mukhtasar Ikhtilaf al-'Ulama' 3/337 and 338; al-Mabsut 16/135 and 136; Bada'i' as-Sana'i' 6/267; al-Umm 7/48; al-Hawi al-Kabir 17/59 and 60; al-Muhadhdhab 2/324; an-Najm al-Wahhaj 10/285 and 286; Mughni al-Muhtaj 6/371; al-Mughni 10/166 and 167; Kashshaf al-Qina' 6/527; Sharh Muntaha al-Iradat 6/657; Manar as-Sabil 3/497 and 499).
Imam Ibn Qudama (may Allah have mercy on him) said: the testimony of a child who has not reached majority is not accepted under any circumstances. This is transmitted from Ibn 'Abbas, and it is the view of al-Qasim, Salim, 'Ata', Makhl, Ibn Abi Layla, al-Awza'i, ath-Thawri, ash-Shafi'i, Ishaq, Abu 'Ubayda, Abu Thawr, Abu Hanifa and his companions.
It is transmitted from Ahmad (may Allah have mercy on him), in another narration, that their testimony is accepted in wounds if they testify before leaving the situation in which they wounded one another; this is the view of Malik, for the apparent fact is their truthfulness and their retention. If they disperse, their testimony is not accepted, for they may have been coached. Ibn az-Zubayr said: "if they are taken at the moment of the calamity, it is most likely that they understand and retain"; and it is transmitted from az-Zuhri that their testimony is valid and that the heirs of the wounded party swear an oath; he mentioned it from Marwan.
It is transmitted from Ahmad, in a third narration, that his testimony is accepted if he is ten years old. Ibn Hamid said: according to this narration, their testimony is accepted in other than the fixed punishments and retaliation, as with slaves. It is transmitted from 'Ali (may Allah be pleased with him) that the testimony of some against others is accepted, and this is transmitted from Shurayh, al-Hasan and an-Nakha'i. Ibrahim said: they used to validate the testimony of some against others in what occurred among them. Al-Mughira said: our companions would not validate their testimony against a free man nor against a slave.
Imam Ahmad reported, with his chain of transmission, from Masruq:
"We were with 'Ali when five young boys came to him and said: we were six young boys wrestling one another, and one of us drowned. Three testified against the two that they had drowned him, and the two testified against the three that they had drowned him. He imposed upon the two three fifths of the blood money, and upon the three two fifths of it."reported by Imam Ahmad with his chain of transmission
Masruq gave a similar judgment.
The school is that their testimony is not accepted in anything, due to the word of Allah the Most High: "and take two witnesses from among your men" (surah al-Baqarah 282), His word: "and take as witnesses two just persons from among you" (surah at-Talaq 2), and His word: "of those you accept as witnesses" (surah al-Baqarah 282), and the child is not one who is accepted; and His word: "and do not conceal testimony; whoever conceals it, his heart is sinful" (surah al-Baqarah 283): He informed that the witness who conceals his testimony is sinful, and the child incurs no sin, which shows that he is not a witness. And because the child does not fear the sin of lying, nothing restrains him from it or prevents him, so no confidence in his word is obtained. And because one whose word is not accepted against himself in acknowledgment has no testimony accepted against another, like the insane; confirmed by the fact that acknowledgment is wider, for it is accepted from the unbeliever, the depraved and the woman, while their testimony is not valid; and because one whose testimony is not accepted in property is not accepted in wounds, like the depraved; and one whose testimony is not accepted against one who is not his like is not accepted against his like, like the insane (al-Mughni 10/166 and 167).
Imam Ibn al-Qayyim (may Allah have mercy on him) said:
This is a matter on which people differed: a group rejected it outright, and this is the view of ash-Shafi'i, Abu Hanifa and Ahmad in one of the narrations from him. From him is a second narration: the testimony of the discerning child is accepted if the remaining conditions are found in him. And from him a third narration: it is accepted in wounds they inflict on one another, if they deliver it before their dispersal; this is the view of Malik.
Ibn Hazm said: it is established from Ibn az-Zubayr that he said: "if they are brought at the time of the calamity, their testimony is valid." Ibn Abi Mulayka said: the judges adopted the view of Ibn az-Zubayr.
Qatada reported from al-Hasan that 'Ali ibn Abi Talib said: "the testimony of the child against the child is valid, and the testimony of the slave against the slave is valid."
Mu'awiya said: "the testimony of children against children is valid, as long as they do not enter the houses and get taught"; and the like is transmitted from 'Ali as well.
Ibn Abi Shayba said: Waki' reported to us; Abd Allah ibn Habib ibn Abi Thabit reported to us, from ash-Sha'bi, from Masruq:
"Six boys went swimming, and one of them drowned. Three testified against two that they had drowned him, and two testified against three that they had drowned him. 'Ali ibn Abi Talib judged against the three for two fifths of the blood money, and against the two for three fifths of it."reported by Ibn Abi Shayba
Ath-Thawri said, from Firas, from ash-Sha'bi, from Masruq:
"Three boys testified against four, and the four testified against the three. Masruq imposed upon the four three sevenths of the blood money, and upon the three four sevenths."reported by ath-Thawri
Abu az-Zanad said: "the Sunna is to act, in children's testimony, upon their word in wounds, together with the oaths of the claimants."
Umar ibn 'Abd al-'Aziz permitted children's testimony among themselves in minor wounds; and when lives are at stake, he judged by their testimony together with the oaths of the claimants.
Rabi'a said: the testimony of some against others is accepted as long as they do not disperse.
Shurayh said: their testimony is accepted if they agree, and not accepted if they differ; and so said Abu Bakr ibn Hazm, Sa'id ibn al-Musayyab and az-Zuhri.
Waki' reported from Ibn Jurayj, from Abu Mulayka: I asked Ibn 'Abbas and Ibn az-Zubayr about children's testimony. Ibn 'Abbas said: Allah only said: "of those you accept as witnesses" (surah al-Baqarah 282), and they are not of those we accept.
Ibn az-Zubayr said: "they are more likely, when asked about what they saw, to testify to it."
Ibn Abi Mulayka said: I never saw the judges adopt anything but the view of Ibn az-Zubayr.
The Malikis say: the Law encouraged teaching children archery, spear and wrestling, and all that trains them to bear arms and strike, to advance and retreat, to strengthen their limbs and firm their feet, and teaching them prowess, ardor and disdain for disgrace and flight. Now it is well known that, in most of their states, they are left alone by themselves in this, and some may wrong others. If we did not accept the word of some against others, their blood would be shed with impunity.
The Lawgiver took precautions regarding the right of blood, to the point of accepting circumstantial evidence and the oath in it, though He did not accept that for a single dirham. And upon accepting their testimony, the doctrines of the righteous predecessors converged: 'Ali ibn Abi Talib, Mu'awiya ibn Abi Sufyan and Abd Allah ibn az-Zubayr held it, and among the Successors: Sa'id ibn al-Musayyab, 'Urwa ibn az-Zubayr, Umar ibn 'Abd al-'Aziz, ash-Sha'bi, an-Nakha'i, Shurayh, Ibn Abi Layla, Ibn Shihab and Ibn Abi Mulayka. The last said: I never knew the judges except judging by the view of Ibn az-Zubayr and Abu az-Zanad, and he said: it is the Sunna.
They say: the condition for accepting their testimony in this is that they understand the testimony, that they be free males upon whom the ruling of Islam applies, two or more, unanimous and not conflicting, that it be before their dispersal and their being manipulated, that it be of some against others, and that it be in killing and wounds exclusively; their testimony is not accepted against an adult that he killed a minor, nor against a minor that he killed an adult.
They say: if they testified, then retracted their testimony, the first testimony is acted upon, and no attention is given to what they retracted to. They say: there is no disagreement among us that neither accreditation nor discrediting is considered for them.
They say: our companions differed on enmity and kinship: do they impair their testimony? Two views. And they differed on whether this ruling runs for their females, or is specific to males so that the testimony of females is not accepted in it? Two views (at-Turuq al-Hukmiyya, p. 250 and 253).
Imam an-Nawawi (may Allah have mercy on him) said: they agreed that the proof consists of four witnesses, being upright males; this is when they testify to the zina itself, and nothing below four is accepted (Sharh Sahih Muslim 11/192).
Imam Ibn Qudama (may Allah have mercy on him) said: the Muslims agreed that nothing below four witnesses is accepted for zina, and Allah the Most High set it out explicitly in the text (al-Mughni 10/155).
Ibn al-Qayyim (may Allah have mercy on him) said: the ruling requires four free men, and that is for the punishment of zina and of sodomy. For zina, it is by text and consensus; as for sodomy, one group said: it is assimilated to it by analogy in the quorum of testimony, as it is in the punishment.
One group said: rather it falls under the designation of zina, for it is penetration of a forbidden part; this the Arabs do not know. These then said: it falls under the designation of zina in religious law (at-Turuq al-Hukmiyya 1/239).
The majority of the fuqaha, the Hanafis, the Malikis, the Shafi'is according to the school and the Hanbalis according to the school, hold that if fewer than four testify, their testimony is not accepted, and they are slanderers all liable to the punishment of qadhf if the person testified against requests it, for:
"Abu Bakra, Nafi' ibn al-Harith and Shibl ibn Ma'bad testified to the zina of al-Mughira ibn Shu'ba before Umar ibn al-Khattab; and as Ziyad did not state it explicitly, saying only: I saw a reprehensible thing, Umar rejoiced, praised Allah and did not inflict the punishment upon him. This took place in the presence of the Companions and was not objected to."authentic; reported by at-Tahawi 2/286 and 287
Umar averted the punishment from him because he had not spoken explicitly of slander, and he flogged the three with the punishment of qadhf.
Ibn Qudama (may Allah have mercy on him) said: if the witnesses of zina are not complete, the punishment is upon them according to the view of most of the people of knowledge, among them Malik, ash-Shafi'i and the adherents of personal opinion. Abu al-Khattab mentioned two narrations concerning them, and two views were transmitted from ash-Shafi'i concerning them, one of which: no punishment upon them, for they are witnesses, so the punishment is not due upon them, as if they were four, one of them being depraved.
In our favor: the word of Allah the Most High: "and those who accuse chaste women and then do not produce four witnesses, strike them with eighty lashes" (surah an-Nur 4), which obligates flogging upon every accuser whose claim four have not testified to; and because it is the consensus of the Companions: Umar flogged Abu Bakra and his two companions when the fourth did not complete his testimony, in the presence of the Companions, and no one objected.
Salih reported in his Masa'il, with his chain of transmission, from Abu 'Uthman an-Nahdi:
"A man came to Umar and testified against al-Mughira ibn Shu'ba, and Umar's countenance changed. Then another came and testified, and Umar's countenance changed. Then another came and testified, and Umar found the matter grave. Then a young man came, gesturing with his hands, and Umar said: what have you, O eagle's droppings? Umar shouted at him with a shout, and Abu 'Uthman said: by Allah, I almost fainted. He said: O Commander of the Faithful, I saw a reprehensible thing. He said: praise be to Allah, who did not let Satan gloat over the companions of Muhammad (peace and blessings of Allah be upon him). He then ordered those men to be flogged."reported by Salih in his Masa'il with his chain of transmission
In a version: when testimony was given before Umar against al-Mughira, three testified and Ziyad remained. Umar said: "I see a fine young man, and I hope that Allah will not expose, through his tongue, a man among the companions of Muhammad, the Messenger of Allah (peace and blessings of Allah be upon him)." He said: O Commander, I saw a posterior moving and a breath rising, and I saw her legs upon his neck like two ears of a donkey, and I do not know what lies beyond that. Umar said: Allah is the Greatest, and he ordered the three to be beaten.
Umar's words: O eagle's droppings, mean that he resembles the eagle's droppings, which burn everything it touches; likewise the punishment inevitably falls upon one of the two parties: if his testimony is complete, the one testified against receives the punishment, and if it is not complete, his companions do. If it is said: Abu Bakra and his companions who testified contradicted them, we say: they did not contradict them on the punishment being due upon him; they only differed from them on the validity of what they testified to. And because he is an accuser of zina who did not produce four witnesses, the punishment is due upon him as if he had produced none.
Or if one of them is like the slaves, the depraved and the blind, there are three narrations concerning them:
The first: the punishment is upon them, and this is the view of Malik. The judge said: this is the correct one, for it is a testimony that was not completed, so the punishment is due by reason of the testimony, as if they were three.
The second: no punishment upon them, and this is the view of al-Hasan, ash-Sha'bi, Abu Hanifa and Muhammad; for these have brought four witnesses and thus fall under the generality of the verse, for their number is complete, and the testimony was rejected for a cause not of their negligence; it resembles the case of four witnesses of undetermined status whose probity or depravity is not established.
The third: if they are blind, or some of them, they are flogged; and if they are slaves or depraved, no punishment upon them. This is the view of ath-Thawri and Ishaq, for of the blind, the lying is known, for they testified to what they certainly did not see; as for the others, their truthfulness is possible, and their number being complete, they resemble those of undetermined status.
The companions of ash-Shafi'i said: if the rejection of the testimony is for an apparent cause, like blindness, bondage or manifest depravity, there are two views concerning them; and if it is for a hidden cause, no punishment upon them, for what is hidden is hidden to the witnesses, so it is not negligence on their part, unlike what is apparent. And if three men and two women testify, all receive the punishment, for the testimony of women in this chapter is as if nonexistent; so said ath-Thawri and the adherents of personal opinion. This strengthens the narration obligating the punishment upon the former and signals its obligation when they are blind or one of them is, for the two women may be truthful and are, overall, qualified for testimony, whereas the blind is certainly a liar and is not qualified to testify to actions: the obligation of the punishment upon them and upon those with them is therefore all the more warranted (al-Mughni 9/66 and 68; see also al-Jawhara an-Nira 5/311 and 312).
Imam al-Kasani said: if fewer than four testify to zina, their testimony is not accepted for deficiency of the required number; and do they receive the punishment of qadhf? Our companions said: they do.
Ash-Shafi'i (may Allah have mercy on him) said: if they come in the manner of witnesses, they do not.
And on this disagreement rests the case where three testify and the fourth says: I saw them under a single blanket, adding nothing more: the three are punished according to us, and no punishment upon the fourth, for he did not slander; unless he had said at the outset: I testify that he committed zina, then explained the zina by what was mentioned: he is then punished.
The basis of the view of ash-Shafi'i (may Allah have mercy on him) is that when they come in the manner of witnesses, their intent is to establish the testimony out of devotion to Allah the Most High, not slander: it is thus no offense, and hence no slander.
In our favor: what is transmitted, that three testified to the zina of al-Mughira and the fourth rose and said: "I saw bare feet, a heavy breath and a reprehensible thing, and I do not know what lies beyond that"; our master Umar (may Allah be pleased with him) said: praise be to Allah, who did not expose a man among the companions of Muhammad, and he inflicted the punishment upon the three. This took place in the presence of the noble Companions (may Allah be pleased with them), and it is not transmitted that anyone objected to him: it was thus a consensus. And because what proceeds from the witnesses is, in reality, speech of slander: slander is the attribution of zina, and it has indeed proceeded from the witnesses, so they fall under the verse of slander; except that we required the completion of the number four: when they come in the manner of witnesses, they aim to fulfill the duty of forbidding wrong, an obligation owed to Allah the Most High, and their speech then ceases to be slander and becomes, in law, testimony; upon deficiency, it remains in reality slander and obligates the punishment (Bada'i' as-Sana'i' 7/47 and 48).
Imam Ibn Hubayra (may Allah have mercy on him) said: they agreed that if the number of witnesses of zina does not reach four, they are slanderers liable to the punishment, except what is transmitted from ash-Shafi'i in one of his two views, that they are not (al-Ifsah 2/260).
probity, and this is found when the two of them testify alone; what is feared is the weak retention of the woman by herself and her poor preservation, so she is reinforced by another woman (at-Turuq al-Hukmiyya, p. 135; I'lam al-Muwaqqi'in 1/195).
The fuqaha have differed on the ruling of requiring the wording of testimony: is the witness required to say: "I testify", or is it not required, the basis being whatever indicates that the witness has knowledge of what he testifies to, such as: "I saw such and such" and "I heard such and such"?
The Hanafis, the Malikis in one view, the Shafi'is and the Hanbalis according to the school, hold that testimony is not accepted except with the wording of testimony; it is not accepted with other expressions, such as those of informing and notification and the like, even if they convey the meaning of testimony, as a rule of devotion whose rationale is not rationally accessible.
He therefore says: "I testify" or "I have testified"; "I am a witness" to such and such does not suffice, for it is a report of what he is characterized by, like his saying: "I am carrying a testimony against so and so concerning such and such."
Likewise "I do not know", "I affirm", "I know" or "I am certain" do not suffice, for he has not produced the verb derived from the wording of testimony.
Nor "I testify to what I have set my writing against", because of the generality and ambiguity it contains; and in an-Nukt: the view of validity is preferable.
But if, after another has testified before him, he says: "of that I testify" or "likewise I testify", it is valid, for its meaning is clear (Bada'i' as-Sana'i' 6/273; al-Jawhara an-Nira 6/138; al-Sharh al-Kabir with the commentary of al-Dusuqi 6/60; an-Najm al-Wahhaj 10/339; Mughni al-Muhtaj 6/413; Zad al-Ma'ad 3/492 and 493; al-Insaf 12/108 and 109; Sharh Muntaha al-Iradat 6/707; Matalib Uli an-Nuha 6/649; Manar as-Sabil 3/521).
Imam ar-Ramli (may Allah have mercy on him) said: the wording "I testify" became specific to the delivery of testimony, to the exclusion of other expressions indicating the affirmation of a thing, because of its conformity with the Book and the Sunna: it is as if there were consensus on its being required. And because testimony is a noun derived from direct observation, which is beholding the thing with one's own eyes; and the present tense became specific because it is established for informing in the present moment; and because it has been used for the oath, such as: "I testify by Allah that such and such occurred", meaning: I swear. The wording "I testify" thus comprises the meanings of observation, oath and present informing: it is as if the witness said: "I swear by Allah and I now inform of it"; and these meanings are absent from the other expressions (Hashiyat ar-Ramli 'ala Asna al-Matalib 4/378).
The Malikis, in the more apparent view, and the Hanbalis in one narration, which is the choice of the shaykh al-islam Ibn Taymiyya and Ibn al-Qayyim, hold that the wording "I testify" is not required: the basis is whatever indicates that the witness has knowledge of what he testifies to, such as "I saw such and such, I heard such and such, or I affirm that this one holds with that one such and such"; no specific formula is therefore required for its delivery, for requiring the wording of testimony is not known of any Companion or Successor, and the Book and the Sunna apply the term testimony to a mere report.
Imam Ibn al-Qayyim (may Allah have mercy on him) said: pronouncing the wording "I testify" is not required for testimony, and this is the strongest of the narrations from Ahmad in terms of proof, even though the more famous among his companions is requiring it; it is the school of Malik. Our shaykh said: requiring the wording of testimony is not known of any of the Companions and the Successors. Ibn 'Abbas said: men of standing, the most acceptable to me being Umar, testified before me that the Messenger of Allah (peace and blessings of Allah be upon him) forbade prayer after the afternoon and after the dawn; and it is known that they did not pronounce to him the wording "I testify"; it was a mere report. And in the hadith of Ma'iz: when he testified against himself four times, he stoned him, while his speech was a mere report about himself, which is an acknowledgment. Likewise the word of Allah the Most High: "do you testify that there are other gods besides Allah? Say: I do not testify" (surah al-An'am 19); His word: "they said: we have testified against ourselves, and the worldly life deceived them, and they testified against themselves that they were disbelievers" (surah al-An'am 130); His word: "but Allah bears witness to what He has sent down to you; He sent it down with His knowledge, and the angels bear witness, and sufficient is Allah as a witness" (surah an-Nisa 166); His word: "have you acknowledged and taken my covenant? They said: we have acknowledged. He said: then bear witness, and I am with you among the witnesses" (surah Al 'Imran 81); and His word: "Allah bears witness that there is no god but Him, and so do the angels and those endowed with knowledge, upholding justice" (surah Al 'Imran 18); and many times that, of what has come in the Qur'an and the Sunna applying the term testimony to a report stripped of the wording "I testify".
Imam Ahmad and 'Ali ibn al-Madini debated the testimony for the ten promised Paradise. 'Ali said: I say: they are in Paradise, but I do not say: I testify that they are in Paradise. Imam Ahmad said to him: once you have said: they are in Paradise, you have testified. This is an explicit statement from him that the wording "I testify" is not required for testimony; and the hadith of Abu Qatada is among the clearest proofs in this (Zad al-Ma'ad 3/492 and 493; al-Insaf 12/108 and 109; Manar as-Sabil 3/521).
Imam al-Dusuqi (may Allah have mercy on him) said: is the wording "I testify" specifically required for the delivery of testimony, or not required? Two views, the more apparent of which is that it is not required: the basis in it is whatever indicates that the witness has knowledge of what he testified to, such as "I saw such and such and I heard such and such, or I affirm that this one holds with that one such and such"; no specific formula is therefore required for its delivery (Hashiyat al-Dusuqi 6/60; Tabsirat al-Hukkam 1/223; Manh al-Jalil 8/406; Hashiyat as-Sawi 'ala ash-Sharh as-Saghir 9/390).
Testimony upon testimony is valid; Ibn Qudama (may Allah have mercy on him) said: by consensus of the scholars, and this is the view of Malik, ash-Shafi'i and the adherents of personal opinion. Abu 'Ubayd said: the scholars of the Hijaz and of Iraq agreed on executing testimony upon testimony in property. And because need calls for it: were it not accepted, testimony over endowments, and over whatever its establishment before the judge is deferred and whose witnesses then die, would be invalidated, which involves harm upon people and great hardship; it must therefore be accepted like original testimony (al-Mughni 10/196).
The people of knowledge agreed that it is accepted in property and what is intended for property (al-Mughni 10/196).
They differed: is it accepted in the fixed punishments or not? Imam Ibn Hubayra (may Allah have mercy on him) set this out when he said: Malik, in one of the two narrations, said: it is accepted in every matter of the rulings, of the rights of Allah and the rights of human beings.
It is transmitted from Ahmad, in another narration: it is accepted in the rights of human beings and is not accepted in the rights of Allah.
Abu Hanifa said: it is not valid in punishments, whether they belong to Allah or to human beings, and it is accepted in everything besides.
Ash-Shafi'i said: it is accepted in the rights of human beings, according to a single view.
And is it accepted in the rights of Allah, like the punishment of zina, theft and drinking intoxicants? Two views, the more apparent of which: it is not accepted.
They differed on the subsidiary witnesses: may a witness be among them? Abu Hanifa said: it may. Ahmad, Malik and ash-Shafi'i said: it may not.
They also differed on the number of subsidiary witnesses. Abu Hanifa, Malik and Ahmad said: the testimony of two is permitted in it, each of the two testifying to the two original witnesses.
Ash-Shafi'i has two views: one like this, and the second: four are required, so that there be a witness for each witness of the original ones.
They agreed that the testimony of subsidiary witnesses is not permitted in the presence of the original witnesses, unless there be an excuse preventing the original witnesses, such as illness or an absence in which the prayer is shortened. And it is transmitted from Ahmad, in another narration: the testimony of subsidiary witnesses is not accepted except after the death of the original witnesses (al-Ifsah 2/422 and 423; see also Bada'i' as-Sana'i' 6/281; Fatawa as-Sughdi 2/802 and 803; al-Kafi, p. 466; al-Hawi al-Kabir 17/220 and 223; al-Muhadhdhab 2/337 and 338).
The people of knowledge agreed that in debts and property the testimony of one man and two women is accepted, by the word of Allah the Most High: "and take two witnesses from among your men; if there are not two men, then a man and two women, of those you accept as witnesses" (surah al-Baqarah 282).
It is mentioned in the context of deferred debts: it is therefore accepted in them.
Likewise, testimony in theft is accepted, as to the right of property, from one man and two women; and as to the amputation, only two men are accepted: if one man and two women testify to theft, the property is established without the amputation.
Imam Ibn al-Mundhir (may Allah have mercy on him) said: they agreed that the testimony of women is valid together with men in debt and property (al-Ijma', p. 271).
Imam al-Kasani (may Allah have mercy on him) said: as for testimony over property, maleness is not a condition in it, and femaleness is not a preventer by consensus: the testimony of women is therefore accepted in it with men, by the word of Allah, blessed and exalted, in the chapter of deferred debt: "and take two witnesses from among your men; if there are not two men, then a man and two women, of those you accept as witnesses" (surah al-Baqarah 282) (Bada'i' as-Sana'i' 6/279).
Imam Ibn Rushd (may Allah have mercy on him) said: they agreed that property is established by one upright male witness and two women, by the word of Allah the Most High: "then a man and two women, of those you accept as witnesses" (surah al-Baqarah 282) (Bidayat al-Mujtahid 2/348).
Imam Ibn Qudama (may Allah have mercy on him) said: there is no disagreement that property is established by the testimony of women with men. Allah the Most High set it out explicitly in His Book by His word, glorified be He: "O you who believe, when you contract a debt for a fixed term" (surah al-Baqarah 282), to His word: "and take two witnesses from among your men; if there are not two men, then a man and two women, of those you accept as witnesses" (surah al-Baqarah 282); and the people of knowledge agreed to hold it (al-Mughni 10/158).
Imam Ibn al-Qayyim (may Allah have mercy on him) said: the Muslims agreed that in property one man and two women are accepted; likewise its corollaries: sale, the term fixed in it, the option in it, pledge, the bequest to a specified beneficiary, its gift, the endowment for it, guarantee of property, its destruction, the claim of the slavery of one of unknown lineage, the fixing of the dowry and the fixing of the compensation of khul': in all that, one man and two women are accepted (I'lam al-Muwaqqi'in 1/92).
Imam Ibn Muflih (may Allah have mercy on him) said: there is no disagreement that property is established by the testimony of women with men, by the text (al-Mubdi' 10/258).
The fuqaha of the four schools agreed that in all the fixed punishments and retaliation, other than the punishment of zina, the testimony of two upright Muslim men is accepted, by the word of Allah the Most High: "and take two witnesses from among your men" (surah al-Baqarah 282).
Imam Ibn al-Mundhir (may Allah have mercy on him) said: they agreed that for killing, the testimony of two upright witnesses is accepted, and judgment is given by their testimony (al-Ijma', p. 276).
He also said: they agreed that the amputation of the thief's hand, when two upright, Muslim, free witnesses testify against him to theft, and describe what obligates amputation, then he reoffends: his hand is amputated (al-Ijma', p. 621).
Imam Ibn Rushd (may Allah have mercy on him) said: they agreed that all rights except zina are established by two upright male witnesses, excluding al-Hasan al-Basri, who said: nothing below four witnesses is accepted, by analogy with stoning. This is weak, by His word, glorified be He: "and take two witnesses from among your men" (surah al-Baqarah 282) (Bidayat al-Mujtahid 2/348).
He also said: they agreed that theft is established by two upright witnesses (Bidayat al-Mujtahid 2/340).
Imam al-Mawardi (may Allah have mercy on him) said: what is accepted with two witnesses with no woman among them comprises everything besides zina of the fixed punishments of Allah the Most High, like amputation for theft, the punishment of brigandage, flogging for wine and killing for apostasy; this is the view of the majority of the fuqaha. Al-Hasan al-Basri said: for everything that obligates killing, I accept nothing below four, as with zina. This is unsound, for zina is of two kinds: part of it obligates stoning and part of it flogging, while the testimony is the same for both; it was therefore required that what lies besides it, in what obligates killing, differ, and nothing requires in that the proof be a single one (al-Hawi al-Kabir 17/7).
Imam Ibn Qudama (may Allah have mercy on him) said: in the fixed punishments and retaliation, only the testimony of two men is accepted, except what is transmitted from 'Ata' and Hammad, who said: one man and two women are accepted in it, by analogy with testimony in property.
In our favor: this is a matter surrounded with precaution for its averting and its dropping, hence it is averted by doubts, and need does not call for its establishment; now the testimony of women involves a doubt, proof being the word of Allah the Most High: "lest one of them err and the other remind her" (surah al-Baqarah 282), and their testimony is not accepted, however many they be, without a man with them: their testimony must therefore not be accepted in it, and the analogy with property is not valid, for the distinction we have mentioned. Of what we have said, Sa'id ibn al-Musayyab, ash-Sha'bi, an-Nakha'i, Hammad, az-Zuhri, Rabi'a, Malik, ash-Shafi'i, Abu 'Ubayd, Abu Thawr and the adherents of personal opinion; these and others agreed that it is established by the testimony of two men, except for zina, excluding al-Hasan, who said: testimony for killing is like testimony for zina, for the destruction of life attaches to it, so it resembles zina.
In our favor: it is one of the two kinds of retaliation, so it resembles retaliation upon the limb.
They then differed on the number required from among them. Abu Hanifa and Ahmad said: the testimony of one upright woman is accepted in this matter. Malik said: nothing less than one upright witness and two upright women is accepted, and a similar view is reported from Ahmad. Al-Shafi'i said: nothing less than four upright women is accepted (al-Ifsah 2/412).
Imam Ibn Rushd, may Allah have mercy on him, said: as for the testimony of women on their own, I mean women to the exclusion of men, it is accepted according to the majority in bodily rights of which men are generally unaware, such as childbirth, the newborn's first cry and women's defects ; there is no disagreement on any of this except regarding breastfeeding (Bidayat al-Mujtahid 2/348).
Imam Ibn Qudama, may Allah have mercy on him, said: we know of no disagreement among the people of knowledge on the acceptance, in principle, of the testimony of women on their own (al-Mughni 10/161).