qarinah

Week week 10

Date @December 19, 2023

Introduction

Definition

Authority

Application of Qarinah in Hudud and qisas cases

Provisions & Decided Cases

Qarinah in Pakistan & Brunei

Qarinah is almost similar to the Common Law principle of “circumstantial

evidence”.

due to circumstances - the person may be related to the case.

Muslim jurists view Qarinah as a conclusive presumption /complete presumptive

proof

Art 1740:

one of the ground fo judgement is a complete presumptive proof =

circumstanctial

Art 1741 :

complete presumptive proof is an inference which obtain the degree of

definition
Together / to be friend / associate
In linguistic sense : anything which shows/indicates the
existence/non-existence of something either words, circ.
/deed ,etc.

qarinah 1
 Abdul Karim Zaidan
Qarinah is referring to any signs / attributes which shows / indicates the existence /
non existence of something.
Section 3:-

"qarinah" means fact connected with the other fact in any of the ways referred
to in this Act;

Syed Khalid Mahmood v The State. (1994) P. Cr. L.J 757.

The Court said:
“...Circumstantial evidence means the evidence afforded not by the direct
testimony of an eye-witness to the fact to be proved, but the bearing upon that
fact or other and subsidiary facts which are relied upon as inconsistent with any
result other than the truth of the principle fact.”

Authorities
Al Qur’an :

1. Surah Yusuf : 18 (Nabi Yusuf & his brothers)

‫َو َج اُء وا َع َل ٰى َق ِم يِص ِه ِب َد ٍم َك ِذ ٍب ۚ َق اَل َب ْل َس َّو َل ْت َل ُك ْم َأ ْن ُف ُس ُك ْم َأ ْم ًر اۖ َف َص ْب ٌر َج ِم يٌل ۖ َو الَّل ُه‬

‫اْل ُم ْس َت َع اُن َع َل ٰى َم ا َت ِص ُف وَن‬
And they brought upon his shirt false blood. [Jacob] said, "Rather, your
souls have enticed you to something, so patience is most fitting. And Allah is
the one sought for help against that which you describe.“

the shirt still intact.

2. Surah Yusuf : 26-29 (Nabi Yusuf & Zulaikha)

a. torn of the shirt in the front or the back

b. prove nabi yusuf’s innocence.

3. Surah al-Baqarah : 228 (period of iddah of a divorced woman)

‫َو اۡل ُم َط َّل ٰق ُت َي َت َر َّب ۡص َن ِب َا ۡن ُف ِس ِه َّن َث ٰل َث َة ُق ُر ٓۡو ٍء‬

qarinah 2
 Divorced women shall keep themselves in waiting for three menstrual
courses and it is unlawful for them, if they believe in Allah and the Last Day,
to hide whatever Allah might have created in their wombs.

presence of menses = not pregnant. (generally)

Hadith:

1. Hadith narrated by al- Bukhari- “consent of the girl”

the hadith that mentioned that the

silence means consent.

2. Nabi Sulaiman and the two women who made a claim over a child

nabi daud bring a knfe to cut in to pieces, and give

the one who agreed was a propf that she was not their mother.

3. Return a thing to the person who can describe its features.

Practice of sahabah

Saiyidina Umar imposed had punishment to a pregnant woman who is

unmarried.

unmarried woman got pregnant: indication the woman had committed zina.

Saiyidina Umar & Abdullah b. Mas’ud –imposed hadd punishment based on a

smell of liquor.

story of maiz, when he admitted of zina, then the prophet asked to smell his
breath =, is there any smell of liquor.

Most caliphs imposed hadd punishment to the thieves when the stolen properties
are found in their possession.-

Judgment passed based on nukul al yamin.- indication thatthe person wa

sguilty. or some said that the reaosn is yhat the seriousmess of the case

refusal of the accused to take yamin can be an idicator that he is guilty.

but some said cannot be indication.

Ulama’ attitude on its admissibility

qarinah 3
 1. Those who reject.

It is a weak and inconsistent evidence based on the Prophet’s tradition narrated

by Ibn. Abbas:-

“If I were to stone someone without testimony, I would have done so to the
women who at the outset looks suspicious from the way she
communicates, her conditions and the person who enters her place”

the prophet himslef did not rely on qarinah.

2. Those who accept, rebut the first group submission

i) Only strong Qarinah is acceptable

ii) The above hadith is only applicable to zina case.

bcs specifically mentioned zina. so does not include other cases.

Ibn Qayyim:

Whoever refused from using signs(qarinah) verily he has neglected many

rules and destroyed many rights”

kena differentiate whether it is strong or weak qarinah.

application of qarinah in hudud and qisas.

1. zina.

unmarried pregnant woman.

abu hanifah and syafii- did not impose hadd

malik: on certain conditions:

local woman

Known by the local residents

There is no indication that she was forced e.g screaming at night

hambali: no hadd punishment.

May be she got pregnant by mistake /force

Al Mughni : Woman can get pregnant even without sexual

intercourse. - cth mcm IVF etc.

qarinah 4
 2. theft

stolen property was found in one possession

He alleged that he is the owner- there is a doubt – X hadd punishment.

Reject the first opinion as thieves will plead this as a defense.

According to Ibn. Qayyim – All the 4 imams and caliphs use to

imposed hadd punishment: Reason - it is stronger than syahadah &
iqrar.

Maliki : Hadd punishment can be imposed if he failed to prove that he

had obtained the good legally. - burden of proof is on the accused
taht he obtaine dthe goods legally.

3. khamr

smell of khamr from the mouth or vomit, breathalizer.

Shafi’e, Hanafi & Thauri : not impose hadd punishment unless

corrobarated with iqrar and syahadah : Reason : may be due to force /
ignorance.

Khulafa’ , imam Malik & others : hadd punishment can be imposed as it

is apparent qarinah - qarinah zahirah.

4. qazaf

All jurists agreed that qazf can be proven by apparent qarinah

5. MURDER &QISAS

Ibn. Qayyim & Ibn al Gharas (Hanbali scholar- hadd punishment can be
imposed

Some ulama’ - this is al-lauth (qarinah) where oath should be taken by the
family 50X.

or 50 resident to take an oath to deny the allegation.

provisions.
Qarinah in general - Chapter 2 (Ss. 5-16) –

Statements made under special circumstance - Ss. 22-26

qarinah 5
 When judgements of Courts are Qarinah -Ss.28-32.

When opinion of Third Persons is Qarinah- Ss. 33-39

section 38 - opinion of third person is qarinah

38. When opinion as to relationship is qarinah.When the Court has to

form an opinion as to the relationship of one person to another, the opinion
expressed by conduct as to the existence of such relationship of any person
who as a member of the family or otherwise has special means of knowledge
on the subject is qarinah.

When Character is Qarinah – Ss. 40-42

cases.

CASES

Halimah v PP Kelantan

halimah admitted that she had given birth by illicit relationship.

the man denied, took an oath.

on appeal: halimah aditted othman was the father. they committed in

ramadhan. got married, but they got divorced.

the fact that she was pregnant, the shows that iqrar made was valid.

qarinah: othman agreed to married her.

Pendakwa Mahkamah Kadhi Perak v Jeffery and Hasliza

second accused was pregannat, base don qarinah, the acucse dwas
convicted,

the pregnancy = qarinah

Pendakwa Syar’ie Kelantan v Yusundy bin Josan & Anor

both were chraged for drinking liquor. from their breath

they contended it was petai.

other evidence availbale- bottle of liquors in their posession, and recipe tof
purchase.

based on qarinah- they were convicted.

walaupun patutnya ada 2 saksi, tapi based on qarinah pun boleh

qarinah 6
 Nooraini bt M. Abdul Majid v Pendakwa Syari’e Melaka

confession. got pregnant.

prengnancy was qarinah that the offence has been committed.

Akhtar Aziz & Anor V The State.

pakistan

appellant was charged for zina

evidence: presence of semen from vagina swab.

both were caught in the same house.

initially both conviceted.

appealed.

court refer to mohd ashraf v state - no absolute evidence aboutt hen

conmmossion of zina, simply bcs they were found in the same house.

and mr sukhan v the state - as to the cement, it was not sufficient, and court
referred to an expert:

the most essesntial ingredient is penetration. a mere insertion of or

entering the male organ into the female organ is suffiecient.

both acquitted in this case. not strong qarinah

Pendakwa Hal Ehwal Agama Terengganu v Nur Thuraya binti Salleh [2015]

muqaddimah zina

takzir syariah offence terengganu, 1.30 pm

2 main element need to be established, the relationshop between both

accused. and the act of preparation of unlawful sexual relation

the first element: they were not prohbited to marry one another accoridng to
islamic law.

the second: the accused pants was unzipped to the extent that he exposed
his private part. and there was also found hugging each other while lying in
the front seat of the car.

qarinah was sufficient to convict both of such offence.

KPS V AMZ [2018] 4 SHLR 41

,muqadimah zina. 61.5 pm, court flamingo.

qarinah 7
 judicial notice that kalau check in kat level 2, t was for that purpose.

the hotel was not

at the time they were cought, both were mnaked and lying on the bed, masa
serbu tu dorang rush , the door was unlocked.

Mohammad Sulasi bin Mohamad & Johari bin Talib (2002)

breathalizer have been used.

to determined to have drunk or not.

strong qarinah.

detect the presence of alcohol.

QARINAH IN PAKISTAN & BRUNEI

pakistan

No definition in QS

Qarinah in general : Chapter 111: Of the Relevancy of Facts (Art18-29)

Statements made under special circumstance – Art 48-52.

Judgements of Courts of Justice when relevant- Art 54-58.

Opinion of Third Persons when relevant- Art 59-65.

Character when relevant – Art 66-69.

brunei

Def : sec 7

Qarinah in general : Chapter 11: Qarinahss7-19

Statements made under special circumstances – ss28-34.

Judgements of Courts of justice when relevant ss36- 40.

Opinion of Third Persons when relevant- ss41-47.

Character when relevant – ss. 48-50

qarinah 8