AL-IQRAR

(admission/confession)
Definition:

 Literally: to become stable/ admission / recognition

 As-Syafei: to state confirmation of a right of another
against oneself. It is the strongest evidence.
 Hanafi: to admit right of others against oneslf.
Shahadah is stronger than iqrar.
 Art. 1752 Mejelle: it is for someone to admit right of
another against himself.
 Sec. 17(1) Shariah Court Evidence (FT) 2007@ SCEFT:
 - an admission made by a person, in writing or orally or
by gesture, stating that he is under an
obligation/liability to another person in respect of
some right.
Therefore…

 Al-Iqrar is a form of admission for proving a fact in

order to establish a right/interest of another person
against the maker of admission.
 Eg:
 Zee made admission that he had stolen Wee’s
notebook. By admission, Zee had established the right
of Wee on the notebook which Zee had stolen.
How can an iqrar be made?

 Al-Iqrar can be made either orally or writing or

gestures (e.g. for a dumb person)
 Effect of al-Iqrar is limited because it only affects legal
position of the maker of Iqrar and no one else. Iqrar
binds him on the facts he has admitted.
LEGAL BASIS OF AL-IQRAR

 Surah Al-A’raf, 7:172

 ‫ى‬ ٰ َ‫م َعل‬ ْ ‫ه‬ُ ‫ش َه َد‬ ْ َ‫م وَأ‬ ْ ‫م ُذ ِريت َُه‬
ْ ‫ه‬ِ ‫ور‬ ُ ْ ‫م ِم‬
ِ ‫ن ظ ُه‬ َ ‫ن بَنِي آ َد‬ ْ ‫ك ِم‬ َ َ‫وَإِ ْذ أ‬
َ ُّ‫خ َذ َرب‬
ِ ‫م ْال ِقيَا َم‬
‫ة إِنا‬ َ ‫ش ِه ْدنَا ۛ أَ ْن تَ ُقولُوا يَ ْو‬َ ۛ‫ى‬ ُ ْ ‫ت بِ َربِ ُك‬
ٰ َ‫م ۖ َقالوا بَل‬ ُ ‫س‬ ْ َ‫م أَل‬ ْ ‫س ِه‬ِ ‫أَ ْن ُف‬
}172{ َ‫ه َذا َغافِلِين‬ َٰ ‫ن‬ ْ ‫ُكنا َع‬
 Meaning:
 172. And (remember) when your Lord brought forth
from the Children of Adam, from their loins, their seed
(or from Adam's loin his offspring) and made them
testify as to themselves (saying): "Am I not your Lord?"
They said: "Yes! We testify," lest you should say on the
Day of Resurrection: "Verily, we have been unaware of
this."
 Surah An-Nisa’ , 4: 135
 ‫م أَ ِو‬ ْ ‫س ُك‬ِ ‫ى أَ ْن ُف‬ٰ َ‫ّلِل َوَلَ ْو َعل‬ ُ ‫ط‬
ِ ِ ‫ش َهدَا َء‬ ِ ‫س‬ ْ ‫ال ِق‬ ْ ِ‫يَا أَيُّهَا ال ِذينَ آ َم ُنوا ُكونُوا َقوا ِمينَ ب‬
‫ى بِ ِهمَا ۖ َف ََل تَت ِب ُعوا‬ ُ ‫ن َغنِيًّا أَ ْو َف ِقيرًا َف‬
ٰ َ‫اّلِل أ ْول‬ ْ ‫َاْلَ ْق َربِينَ ۚ إِ ْن ي َُك‬
ْ ‫نو‬ ِ ‫ْالوَالِ َد ْي‬
‫خ ِبيرًا‬ َ ‫ون‬َ ُ‫ان بِمَا تَ ْعمَل‬ َ ‫ّللا َك‬ َ ‫ضوا َف ِإن‬ ُ ‫َى أَ ْن تَ ْع ِدلُوا ۚ وَإِ ْن تَ ْل ُووا أَ ْو تُ ْع ِر‬ ٰ ‫ْال َهو‬
}135{
 Meaning:
 135. O you who believe! Stand out firmly for justice, as
witnesses to Allah, even though it be against yourselves,
or your parents, or your kin, be he rich or poor, Allah is a
Better Protector to both (than you). So follow not the lusts
(of your hearts), lest you may avoid justice, and if you
distort your witness or refuse to give it, verily, Allah is Ever
Well-Acquainted with what you do.
 Explanation to Surah An-Nisa’ , 4: 135:
 Allah orders believers to stand out for justice as
witnesses to Allah even against themselves.
 Surah Al-Qiyamah, 75: 14
 }14{ ‫صي َر ٌة‬
ِ َ‫ه ب‬ ٰ َ‫ان َعل‬
ِ ‫ى نَ ْف‬
ِ ‫س‬ ُ ‫س‬ ِ ْ ‫َل‬
َ ‫اْل ْن‬ ِ ‫ب‬
 Meaning:
 14. Nay! Man will be a witness against himself [as his body parts (skin,
hands, legs, etc.) will speak about his deeds].
 Explanation to Surah Al-Qiyamah, 75: 14:
In hereafter, a man will be evidence against himself.
Legality from As-Sunnah

 Hadith: speak the truth even though it be against

yourself.
 Hadith:
 In the case of Maiz bin Malik, Abu Hurairah reported a
person came to see the Prophet s.a.w when he (the
Prophet) in the mosque and said: O the Messenger of
Allah! I have committed adultery. The Prophet turned
away and after that person had testified 4 times
against himself, the Prophet called him and said: “are
you mad?” He replied: “No.” the Prophet then said:
“take him and stone him.”
Hadith…

 The Prophet told Unais “Go to the woman who was

accused of adultery quickly and ask her whether she
admits or not. If she admits, then stone her.” the
woman admitted and was stoned to death.
Legality on the practice of
companions:
 Narrated by Safiyyah Abi Albayd:
 A man who had intercourse with a virgin slave girl and
made her pregnant was brought to Abu Bakar. He
confessed to fornication and he was a non muhsan.
Abu Bakar gave the order for him to be flogged with
the hadd punishment. He then was banished to
Fadak.
 Sayyidina Umar Al-Khattab punished a woman for
adultery based on her admission.

 Ijma’ (all jurists accept evidence by iqrar).

Types of Al-Iqrar

 Generally, it can be said that an admission may be

made in any form as long as it is understood as a
confession; either orally, in written form or by using
sign/gesture.
Oral Admission

 An admission can be made orally by a person/ witness

who is capable of giving an oral testimony.
 It is the most effective way of communication and the
easiest way in understanding something.
 Art. 79 Mejelle:
 A person is bound by his admission.
Written admission

 Accepted if it is not forged & may be made by normal

/ dumb man
 Art. 1606 Mejelle:
 Admission in writing is like admission by word of
mouth.
Gestures/signs admission

 The general rule is that silence is not regarded as

speaking.
 Mute person may make an admission by using known
and acceptable signs; and such admission may be
transferred into writing which will be recognised as if it
was made orally.
Gesture/sign…

 Art. 1586:
 Admission made by known signs of a dumb person are
held good but admission by signs of a person who can
speak is not considered.
 According to Hanafi school of law: in matters of civil
transaction, the admission made in an intelligible signs
by a person is only admissible if he can’t write.
 According to jumhur ulama: admission by known sign
of a dumb person is admissible in all cases except zina.
Gesture/sign…

 Opinion of jurists in adultery case:

 Syafie & Maliki:
admissible.
 Hanafi:
not admissible because it might cause
doubt/shubhah.
Issue…

 Q: on the silence of a person who is able to speak,

whether it can be regarded as a valid admission/not?
 Imam Al-Sayuti + Ibn Najim were in the opinion that a
person who keeps silence, without having any speech,
it is regarded as his admission.
 Mahmasani: silence in itself is not consequences unless
it be suppoerted by the facts of the situation.
 Art. 67 Mejelle:
 To a man who keeps silent, no word is imputed, but
where there is no necessity to speak, silence is a
declaration.
 Sec.17 SCEFT 1997:
 An iqrar is an admission made by a person, in
writing/oral/ by gesture.
Elements/Rukn of al-Iqrar

 1- Muqarrun
(person who makes iqrar)
 2- Muqarrun Lahu
(person who receives benefit from iqrar)
 3- Muqarrun Bihi
(subject matter of iqrar i.e. the right/interest / liability)
 4- Sighah
(words indicating admission)
CONDITIONS: Muqarrun

 1- Sound mind & majority age.

Sec. 18(1)(a), (b) + 18(2) SCEFT.
 Must be aqil + baligh.
 Iqrar by minor (attains mumayyiz) who is authorised
by wali/guardian to carry on business/dealing is
acceptable.
 Iqrar by minor not mumayyiz, insane, sleeping or
intoxicated person is not admissible.
 2- Must not be lunatic / mentally retarded.
[Sec. 18(1)(c) SCEFT]

 3- Must not be made by wali/guardian on

behalf of person under custody /
responsibility.
[Sec.18(1)(d) SCEFT]
 4- Made voluntarily (free consent)
 With full awareness of the effect of iqrar.
 Sec.18(1)(e)
 Art.1575 Mejelle (admission must be made without coercion).
 Thus, iqrar made under threat,inducement or promise is not permissible.
Juristic opinion regarding
free consent…
 (i) Jumhur ulama’: agreed that accused cannot be
forced to admit guilty.
 Ibn Hazam: cannot conduct the examination by beating,
imprisonment or threat.
 Malikis: not admissible even if iqrar leads to recovery of
victim in murder / stolen goods in robbery.
 (ii) Ibn Abidin: allows beating of accused for
confession on condition that it does not cause
wounding the flesh, exposing bones & the accused is
a known bad man because without beating it is rare
to get confession & it is needed during interrogation
due to spread of corruption nowadays.
 (iii) Ibn Qayyim: adopt middle view saying that
involuntary iqrar is not admissible but its true result is
admissible.
 If accused found with stolen property & tortured for
confession of stealing & stolen property is found, he
should be punished. This punishment is not because of
forced confession but because of evidence of possession
of stolen property support his guilt. However the accused
has right to remedy against persons who tortured him
since such act is illegal.
 Conclusion:
 majority opinion is more consistent with shariah.
 The 2nd opinion is weak
 The 3rd opinion is contrary to principle “a right cannot arise out of
wrong.”
 Majority opinion is supported by sayings of Sayyidina Umar: “a man
would not be secure from incriminating himself if you made him
hungry, frightened him or confined him.” It also supported by story of
Abdullah ibn Umar who did not amputate the accused person of
theft; based on his confession made after beating.
 5- Must not under restriction from managing property
(not a bankrupt person)
 Sec.18(1)(f) ESCFT

 6- No tohmah / shubhah on him i.e. not a person who

is known to make false statement continuously.
 7- Must be a specific person
 if a group of man admitted that only one of them
committed offence, it is not admissible / in a case
that has several defendants, if only some of the
defendants admit debt to plaintiff while others deny,
admission shall only bind those who made it thus
must pay the debt.
 CONDITIONS: Muqarrun
Lahu
 1- able to hold property i.e. has capacity to hold property. Thus
admission made for a fetus is not valid.
 2- Has not waived his right.
 Hence, no condition to be sound mind / attain majority age.
 Sec.18(3) + Art.1574 Mejelle: there is no condition that Muqarrun
Lahu should be of sound mind).
 Thus if a person makes admission on certain property in favour of an
infant/minor, it is valid & he must give up the property.
 CONDITIONS: Muqarrun Bihi
 1- Facts admitted must be acceptable/
probable either by reasons (logic) or syara’.
E.g.: A admits that B was dead but it appears contrary to a proof that B in
fact had died earlier / Z admits that division of property between male and
female is equal.
 2- In criminal cases, facts admitted must be clear & specific (explicit).
Support with hadith relating to Maiz.
 3- In civil cases, facts admitted may be general without specification.
 4- Facts admitted should not be qualified. E.g. X admits that he owes
money to Y but which is only due next month or that Y had released
him of it.
CONDITION: Sighah

 Wording of admission must be clear.

 Sighah is the utterance of clear words made by a
person to establish the right of another perso against
himself. E.g.: “I admit that I stole Hani’s laptop.”
 Well known sign language of a dumb person has
similar status as oral admission.
 Likewise written admission is admissible.
Cases:

 MUSTAFAH BATCHA V HABEEBA

Principle: although admission appears to be strongest
method of adducing evidence, before it is accepted, it
must be assured that it is done by person who is of sound
mind, mumayyiz, done voluntarily, conscious, without
being forced, determinately and no elements of
falseness.
Mahmasani stated that it must be done unconditionally
(mutlaq). Otherwise it will be invalid.
IQRAR MADE INSIDE &
OUTSIDE COURT
 To determine whether the proceeding is inside or
outside court, depends on types of disputes i.e. in civil
case, there are 2 stages: pleadings + court
proceedings; while in criminal case, there are 3 stages:
investigation, accusation + main trial.
 Thus in civil case, admission made through pleading is
regarded as outside court while in criminal case,
admission made before investigating officer is
regarded as outside court.
 Jurists agreed that iqrar made inside court is valid. Refer to An-Nisa’,
4:135 and the hadith regarding Maiz.
 no witnesses is needed.
 Jurist differed in iqrar made outside court:
 (i) Majority: iqrar may be made outside court on condition that it is
made voluntarily, not retracted & witnessed by 2 male adil Muslim
witnesses (al-Baqarah, 2: 282 + 283). If in zina case, 4 witnesses.
 (ii) Imam Abu Hanifah: iqrar outside court is not admissible as
evidence.
Conclusion: Iqrar Made
Inside & Outside Court
 Iqrar made inside court is valid according to
unanimous view of fuqaha without any condition but
iqrar made outside the court can only be valid if all
conditions are complied with.
 Practice in Malaysia under sec.17(2) SCEFT supports
majority view where it imposes several conditions for
admission made outside court i.e. must be made
before 2 male witnesses who are aqil, baligh and adil.
Iqrar Under Provisions Of
SCEFT
 Sec.17(1): definition of iqrar + explanation
 Sec.17(2): conditions of admission made outside of
court + explanation
 Sec.17(3): admission which relates to any fact is
qarinah + explanation
 Sec.18: conditions of iqrar + explanation
 Sec.19: iqrar made during death illness + explanation
IQRAR IN HUDUD CASES

 All jurists agreed that hudud offences can be

established by iqrar although they are of different
opinion on numbers of repetition of iqrar required.
 Adultery case:
 Numbers of repetition:
(i) Hanafis + Hanbalis: repeated 4 times (at
separate sittings of judge / one sitting). Based on
hadith relating to Maiz.
Adultery case…cont

(ii) Majority: 1 admission at 1 sitting. Based on:-

a) hadith where the Prophet told Unais “Go to the
woman who was accused of adultery quickly and ask her
whether she admits or not. If she admits, then stone her.” the
woman admitted and was stoned to death.
b) because admission is the most probable true as it is
made against the maker himself. Thus single admission is
sufficient.
Adultery case…cont
 Iqrar shall be accepted if made in court.
 Muqarrun must give details of commission of adultery as to its time,
place and manner in verbal form. Writing and sign language are
admissible only for dumb person.
 Iqrar must not be retracted.
 Hanafis and Hanbalis viewed that Muqarrun must be capable of
penetration.
 Abu Hanifah and Malikis: Muqarrun must be Muslim. However
according to Abu Yusuf: a zimmi and harbi can also be inflicted by
punishment based on confession of zina.
THEFT & ROBBERY CASE

 Numbers of repetition:
(i) Hanbalis + Abu Yusuf: repeated 2 times in court. Based
on:-
a) practice of Prophet who did not pass verdict of guilty
until repeated twice.
b) Sayyidina Ali ordered for amputation of hand of the
accused after hearing twice confession.
c) by making analogy to 2 witnesses required.
THEFT & ROBBERY CASE...cont

(ii) Majority: 1 confession. Based on:-

a) practice of Prophet who ordered punishment upon
single confession.
b) in testimony evidence, 2 witnesses is required to avoid
falsehood but such does not exist in iqrar evidence.
 Muqarrun must give full explanation of the theft /
robbery committed.
 Muqarrun must not retract his confession.
 Abu Hanifah & some Syafies: there must exist a claim
by aggrieved parties. Based on hadith where
Samarah made confession for theft of property.
Prophet delayed verdict until he found out the
aggrieved party who confirmed the confession made.
DRINKING LIQUOR

 Numbers of repetition:
(i) Hanbalis & Abu Yusuf: repeated 2 times. Based on
analogy of proving by way of testimony of 2 witnesses.
(ii) Majority: 1 confession.
 Muqarrun must not retract his iqrar.
 Hanafis: Muqarrun must be drunk at the time of making
confession. Thus confession must be made
immediately while the smell of liquor still exists.
In other hudud case:

 Fuqaha agreed in holding that 1 confession is

sufficient.
 Fuqaha agreed that retraction of iqrar is admissible in
apostasy & rebellion, but not in qazaf case.
IQRAR IN QISAS CASES

Fuqaha agreed that qisas

case can be proven by 1
confession only &
retraction of iqrar is not
admissible since it relates
to pure right of people;
like property case.
IQRAR MADE DURING DEATH
ILLNESS (Marad al-maut)
 No requirement that iqrar must be made in good
health to be valid. Thus a sick person may make
admission & it is valid.
 However in case of death illness, 2 situations to be
considered:
(i) Iqrar made relating to his liability / obligation to another
person shall be admissible. Supported by sec.19 SCEFT.
(ii) Iqrar made relating to liability / obligation to one of
his heirs is not admissible & void because strong probability
that he is trying to exclude other heirs from inheriting
property (bias to some heirs) unless such admission is
agreed by other heirs.
EFFECT OF IQRAR

 Iqrar has restrictive effect.

 If admission is validly made (by fulfilling all the required
conditions), Muqarrun is binding on his admission i.e.
Iqrar binds Muqarrun himself only either in civil or
criminal.
 Art.78 Mejelle: “...while admission is a proof which is
restricted in its effect.”
 Art.79 Mejelle: “By his admission, a person is bound.”
Admission by co-accused:

 It only affects/binds himself and not the other

accused. Co-accused is individually responsible for his
admission.
 In adultery case (where consummation is impossible
without involving 2 persons) majority fuqaha (except
Hanafis) viewed that admission made by one
accused does not affect another accused who
denies the adultery. Based on hadith where Prophet
ordered the man who confessed zina to be punished
while the woman who denied zina was acquitted.
Admission by representative (on
behalf of Defendant) in civil
case:
 (i) iqrar by wasi in property: it is valid according to
Imam Sarkhasi.
 (ii) iqrar by wali (guardian): all fuqaha agreed that it is
void because infant is not subject to legal
accountability where his admission is not valid. A
person who has no legal competence to make valid
admission cannot authorise another person to do so
on his behalf.
 (iii) iqrar by attorney (legal representative): all fuqaha agreed that
agency (wakalah) is a valid institution BUT in the case of wakalah for
iqrar, it is not admissible in hudud & qisas offences. In civil transaction,
there are different views:
- Hanafis: valid if made in court of competent
jurisdiction.
- Syafies: not valid.
- Imam Malik: valid if specifically authorised to do
so.
RETRACTION (withdrawal) OF
IQRAR
 In Cases Relating To People’s Right:
 (i) all fuqaha agreed that iqrar validly made cannot
be retracted because rights of human beings cannot
be nullified by doubt and retraction of iqrar creates
doubt. Legality: Surah al-Qiyamah, 75: 15.
 (ii) Abdul Fatah: retraction is permissible subject to
confirmation by Muqarrun Lahu.
 In Qisas case:
 Retraction also not permissible because it relates to
rights of people.
 Rectraction of iqrar…
 In Hudud Case:
 If involves pure right of Allah: majority jurists said that retraction is valid
and thus hadd punishment becomes ta’zir. It based on:
- a) hadith about Maiz whre Prophet sai after hearing Maiz attempt
to escape “I wish you shold have left him and brought him to me.”
the escape amounts to retraction.
- b) principle of criminal justice that hadd punishment would be
nullified by doubt. Retraction of iqrar creates doubt thus it is valid.
 If involves both rights of Allah & people e.g. in theft and robbery:
retraction is valid but it onlyremoves hadd punishment but the
people’s right remain unaffected (must return stolen property to the
owner). Based on hadith where Prophet said “a person has to return
what he has taken out of other’s possession.” in qazaf case, fuqaha
differed in opinion but Abu Thir holds that retraction has no effect.
 If retraction made by one of the accused persons in hudud case:
Abu Hanifah said retraction removes hadd punishment from all co-
accused.
 Conclusion: iqrar cannot be retracted except in hudud case to the
extent of right of Allah.
 Conclusion of iqrar:
 An efficient method of resolving dispute & establishing rights
belonging to Allah where it may confer rights even to a human
embryo.
 Has high degree of certainty & evidential weight since its binding
authority comes from individual consciousness to Allah (in telling the
truth). This makes iqrar to be most probably true than false.
 It is a bundle of obligations & undertakings and thus very useful in
administering justice.
 Rules governing admissibility of confession in criminal cases are
flexible in practice e.g. for confession to become basis for conviction,
it must be made explicitly & not retracted.
DECIDED CASES
 HALIMAH V PENDAKWA JENAYAH KELANTAN
 Facts: Halimah nad Osman were charged with illegal sexual
intercourse. Halimah made admission that she was pregnant as a
result of sexual intercourse with Osman whom she was not married to.
At trial, prosecutor called 4 witnesses to give evidence that both
accused had admitted the offence. In defence, Osman gave
evidence on oath & denied the charge. He said he was forced to
marry her after she became pregnant. He also gave few witnesses to
support this. Halimah took oath that she had intercourse with Osman
3 times & called her father to support.
 HELD: Osman was acquitted