Understanding Tazkiyah al-Shuhood in the Context of Pakistani Law

Tazkiyah al-Shuhood is a concept in Islamic jurisprudence that pertains to the verification and certification of the credibility of witnesses in legal proceedings, particularly in cases involving serious offences such as those punishable by Hadd (fixed punishments under Islamic law) or Qisas (retributive justice). The term “Tazkiyah” means purification or purgation, and “al-Shuhood” refers to the witnesses. Therefore, Tazkiyah al-Shuhood can be understood as the process of purifying or verifying the witnesses to ensure their moral and religious integrity.

Key Aspects of Tazkiyah al-Shuhood:

1. Purpose: The primary purpose of Tazkiyah al-Shuhood is to ensure that the witnesses whose testimonies are relied upon in court are trustworthy, truthful, and morally upright. This process aims to exclude any doubt regarding the credibility of the witnesses, thereby upholding the integrity of the judicial process.
2. Applicability: Tazkiyah al-Shuhood is particularly important in cases involving Hadd and Qisas punishments. For Hadd offences, such as zina (adultery), qazf (false accusation of adultery), theft, and drinking alcohol, and for Qisas (retribution in kind, such as in cases of murder), the stringent requirements for witness credibility are mandatory. In other types of cases, such as those punishable by Tazir (discretionary punishment), the standards may be less stringent.
3. Process: The process of Tazkiyah al-Shuhood involves several steps, typically including:
   • Inquiry by the Court: The court conducts an inquiry, either openly or secretly, to determine the credibility of the witnesses. This can be done directly by the judge or through an appointed person known as a Muzakki.
   • Verification of Character: The court examines the witnesses’ moral character, including their adherence to religious practices, abstention from major sins, and general reputation for truthfulness and integrity.
   • Testimony of Muzakki: The Muzakki, who is tasked with verifying the witnesses, may gather information from the community, question the witnesses about their conduct, and report back to the court.
   • Assessment by the Court: The court reviews the findings of the inquiry and decides whether the witnesses meet the criteria of Tazkiyah al-Shuhood.
4. Criteria for Witnesses: For witnesses to be deemed credible under Tazkiyah al-Shuhood, they must:
   • Be truthful and abstain from major sins (Kabira).
   • Be known for their moral integrity and righteousness (A’dil).
   • Not have a history of perjury or false testimony.
   • Be adult Muslim males for Hadd offences (although there are variations in different schools of thought).

Importance in Islamic Law:

Tazkiyah al-Shuhood plays a crucial role in maintaining the sanctity and fairness of the judicial process in Islamic law. By ensuring that only morally upright and credible witnesses can provide testimony in serious cases, the process helps to prevent miscarriages of justice and ensures that the severe punishments prescribed by Hadd and Qisas are only imposed based on reliable and trustworthy evidence.

Practical Implications:

1. Judicial Responsibility: The court bears the responsibility to thoroughly verify the credibility of witnesses, ensuring that all procedural requirements are met before accepting their testimony.
2. Impact on Verdicts: The failure to properly conduct Tazkiyah al-Shuhood can result in the alteration or setting aside of Hadd punishments, as the stringent criteria for these punishments necessitate credible witnesses. In such cases, the court may opt for Tazir punishments instead.
3. Challenges: The process can be time-consuming and complex, involving subjective assessments of moral and religious character. This can lead to inconsistencies and challenges in modern legal contexts where societal norms and values might differ from traditional Islamic principles.

In summary, Tazkiyah al-Shuhood is a fundamental aspect of Islamic jurisprudence aimed at ensuring the reliability and moral integrity of witnesses in legal proceedings, particularly for severe punishments under Hadd and Qisas. It reflects the emphasis on justice and fairness in Islamic law by demanding high standards of credibility for those whose testimonies form the basis of judicial decisions

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Tazkiyah al-Shuhood, or the mode of inquiry adopted by a court to satisfy itself regarding the credibility of a witness, is a pivotal concept in the Pakistani legal system, particularly in cases punishable by Hadd and Qisas. This article elucidates the concept through notable case law and legal interpretations.

In the case of PLJ 1994 Cr.C. (SAC) 91, the court faced a situation where two adult male Muslims, other than the victims of the crime, were unavailable. The four individuals present in the van, who were in actual and constructive custody of the money in the briefcase and bag snatched by the culprits, were all considered victims. Consequently, they could not serve as independent witnesses satisfying the requirements of Tazkiyah al-Shuhood. The trial court’s failure to appoint a Muzakki (purgator) to verify the truthfulness of the eyewitnesses, a condition precedent for a conviction under Hadd, led to the alteration of Shahid Iqbal’s conviction. His conviction under Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was not sustainable and was altered to a conviction under Section 20 of the Ordinance read with Section 392 of the Pakistan Penal Code (PPC), with the sentence awarded by the trial court maintained at 10 years of rigorous imprisonment and a fine.

It is essential to note that the requirement of Tazkiyah al-Shuhood is obligatory only in cases punishable by Hadd and Qisas, not in cases punishable by Tazir (PLJ 1999 SC 105).

Case Studies on Tazkiyah al-Shuhood

1. Iftikhar Ali vs. The State (1998 PCrLJ 2022, Peshawar DB): Here, the sentence of death awarded to the accused by the trial court was altered to death as Tazir due to the absence of Tazkiyah al-Shuhood.
2. Sambali Khan vs. The State (PLD 1998 Peshawar 101, DB): The liability of Qisas necessitated two competent witnesses. The trial court did not establish the probity of the eyewitnesses through Tazkiyah al-Shuhood, leading to the alteration of the death sentence to life imprisonment.
3. Home Secretary NWFP vs. Muhammad Ayaz Khan etc. (NLR 1996 SD 709, Peshawar DB): The case outlined the detailed procedure for Tazkiyah al-Shuhood, emphasizing the need for credible witnesses and a thorough inquiry by the court.
4. Gulbar vs. The State (PLD 2002 Peshawar DB 65): The court highlighted that Tazkiyah al-Shuhood, once conducted, is effective for six Islamic months. The absence of such evidence within this period rendered the death sentence as Qisas unwarranted.
5. Muhammad Israr & Others vs. The State (1998 PCrLJ 383, FSC.DB): This case underscored that Tazkiyah al-Shuhood could be conducted through open or secret modes, and the failure to properly conduct it led to the alteration of the sentence.
6. Irfan Masih vs. The State (1998 PCrLJ 716, FSC.DB): The lack of Tazkiyah al-Shuhood before recording the statements of prosecution witnesses resulted in the alteration of the death sentence to life imprisonment.
7. Ghulam Nabi & 2 Others vs. The State (PLJ 2008 FSC 27): This case emphasized the violation of Tazkiyah al-Shuhood requirements, highlighting the need for credible witnesses and a thorough inquiry process.
8. Sajid Sohail vs. The State (2009 SCMR 356): The absence of Tazkiyah al-Shuhood for a death sentence under Qisas did not preclude the imposition of Tazir punishment based on believable testimony.

Tazkiyah al-Shuhood serves as a critical legal requirement ensuring the credibility of witnesses in cases of Hadd and Qisas. Through various cases, the Pakistani legal system has underscored its significance, procedural requirements, and implications for convictions. The courts’ meticulous approach to validating witness credibility through Tazkiyah al-Shuhood safeguards the integrity of judicial decisions in serious criminal cases.

The cases  mentioned below  provide a comprehensive view of the judicial attitude towards Tazkiyah al-Shuhood in the Pakistani legal system. Here’s a detailed analysis:

1. Mst. Naseema Bibi vs. Murad (2021 YLR 1243, Federal Shariat Court): This case illustrates the critical importance of Tazkiyah al-Shuhood in the context of Hadd offences. The trial court acquitted the accused on the grounds of absence of Tazkiyah al-Shuhood among the prosecution witnesses. However, the appellate court highlighted that while the assessment of Tazkiyah al-Shuhood is essential, the trial court failed to provide cogent reasons for its conclusion. This oversight led to the remanding of the case for re-writing the judgment, emphasizing that judgments must adhere to mandatory procedural requirements and provide clear reasons when assessing witness credibility.

2. Shahid Orakzai vs. Pakistan (2017 PLD 63, Federal Shariat Court): This case underscores that Tazkiyah al-Shuhood is a critical component of Islamic jurisprudence, necessary for validating the credibility of witnesses in Hadd cases. The court highlighted that Tazkiyah al-Shuhood involves a rigorous inquiry to ensure that witnesses are just, righteous, and free from major sins. It is the court’s duty to ascertain the veracity of witnesses, a process distinct from but not undermining the defence’s right to cross-examination. The court’s duty in conducting Tazkiyah al-Shuhood ensures that only credible witnesses can testify in Hadd cases, maintaining the integrity of the judicial process.

3. Zahid Hussain Chandio vs. State (2016 MLD 1103, Karachi High Court Sindh): This case emphasizes the procedural importance of Tazkiyah al-Shuhood in deciding bail applications in Hudood cases. The court granted bail to the accused due to the prosecution’s failure to fulfill the requirement of Tazkiyah al-Shuhood and the presence of procedural delays and discrepancies. This highlights that Tazkiyah al-Shuhood is not only essential for convictions but also plays a crucial role at preliminary stages such as bail hearings.

4. Sajid Sohail vs. State (2009 SCMR 356, Supreme Court): In this Supreme Court case, the importance of Tazkiyah al-Shuhood in awarding Qisas is underscored. The court noted that while death as Qisas requires the fulfillment of Tazkiyah al-Shuhood, Tazir punishment can still be imposed based on credible and believable testimony without this stringent requirement. This distinction reflects the court’s adherence to Islamic legal principles while ensuring that justice is served even when the stringent criteria for Hadd are not met.

5. Muhammad Aslam vs. State (1999 MLD 2500, Federal Shariat Court): This case reflects the necessity of Tazkiyah al-Shuhood for awarding Hadd punishments. The Federal Shariat Court altered the Hadd punishment to imprisonment as the trial court had not conducted Tazkiyah al-Shuhood, which is mandatory under the Prohibition (Enforcement of Hadd) Order, 1979. This decision reinforces the procedural necessity of Tazkiyah al-Shuhood in validating witness credibility for Hadd offences.

6. Iftikhar Ali vs. The State (1998 PCrLJ 2022, Peshawar High Court): Here, the court altered the death sentence awarded as Qisas to death as Tazir due to the absence of Tazkiyah al-Shuhood. This case demonstrates that while the guilt of intentional murder was established, the stringent requirements for Hadd punishments necessitated Tazkiyah al-Shuhood, failing which the sentence was adjusted to Tazir.

7. Sambali Khan vs. The State (1998 PLD 101, Peshawar High Court): In this case, the court altered the death sentence as Qisas to life imprisonment due to the failure to establish Tazkiyah al-Shuhood. The decision highlights the indispensable nature of witness probity for imposing Qisas and reinforces that without such validation, sentences must be adjusted to ensure justice.

8. Secretary to Government of NWFP vs. Muhammad Ayaz Khan (1996 PLD 76, Peshawar High Court): The case provides guidelines on the process of Tazkiyah al-Shuhood, emphasizing its critical role in the proof of Qatl-i-Amd liable to Qisas. The court’s detailed guidelines reflect the importance of a thorough and systematic approach to validating witness credibility in accordance with Islamic legal principles.

9. Mst. Nuzhat Jabin vs. Jamil Hussain Shah (1996 PLD 15, Federal Shariat Court): This case underscores the necessity of Tazkiyah al-Shuhood for imposing Hadd punishments under the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. The court set aside the acquittal of the accused and convicted him under S.11 of the Ordinance for committing Qazf, liable to Tazir. The trial court had failed to make any findings or references to attempts at satisfying the requirement of Tazkiyah al-Shuhood, either through open or secret inquiries. The Federal Shariat Court’s decision to convict the accused without Tazkiyah al-Shuhood demonstrates the court’s insistence on upholding procedural requirements and ensuring the credibility of witnesses, even when the proof for Hadd is absent, allowing for a Tazir punishment instead.

10. Daniel Boyd (Muslim Name Saifullah) vs. State (1992 SCMR 196, Supreme Court): In this case, the Supreme Court of Pakistan highlighted the stringent standards required for the infliction of Hadd punishments. The court emphasized that proof must be furnished by truthful individuals who abstain from major sins, with the court needing to be satisfied regarding the requirements of Tazkiyah al-Shuhood. The case involved eye-witnesses who were found to be untruthful, as they contradicted their previous recorded statements. This led the court to conclude that the infliction of Hadd punishment on the accused could not be based on the evidence of such witnesses, reinforcing the principle that the credibility and moral integrity of witnesses are crucial in cases of Hadd.

Analysis and Conclusion: The analysis of these additional cases further reinforces the Pakistani courts’ consistent attitude towards Tazkiyah al-Shuhood, especially in cases involving Hadd punishments. The courts emphasize several key points:

1. Necessity of Credibility Assessment: The requirement of Tazkiyah al-Shuhood is indispensable in cases of Hadd and Qisas. The courts insist on a thorough assessment of witness credibility, ensuring that witnesses are truthful, abstain from major sins, and are morally upright (A’dil).
2. Procedural Rigor: The courts emphasize the procedural rigor involved in conducting Tazkiyah al-Shuhood. This involves open or secret inquiries by the court or appointed Muzakki to ensure that witnesses meet the stringent criteria set by Islamic jurisprudence.
3. Impact on Convictions and Sentences: The failure to properly conduct Tazkiyah al-Shuhood can lead to the alteration or setting aside of Hadd punishments, as seen in the cases discussed. When the required standards are not met, the courts are inclined to adjust sentences to Tazir, which requires a lower threshold of proof.
4. Judicial Responsibility: The courts bear the responsibility to ensure that Tazkiyah al-Shuhood is properly conducted, and they must provide clear and cogent reasons for their findings regarding witness credibility. This underscores the judiciary’s role in upholding the principles of Islamic justice while ensuring procedural compliance.
5. Balancing Justice and Procedure: While the courts uphold the principles of Tazkiyah al-Shuhood, they also recognize the importance of ensuring justice. In instances where witness credibility is questionable, the courts prefer to err on the side of caution, adjusting sentences to reflect the evidence’s reliability.

In conclusion, the judicial attitude towards Tazkiyah al-Shuhood in Pakistani law is marked by a commitment to procedural integrity, witness credibility, and the principles of Islamic justice. The courts meticulously apply these standards to ensure that the administration of Hadd punishments adheres to the stringent requirements set by Shariah law, while also safeguarding the rights of the accused by ensuring that only credible and morally upright witnesses are relied upon in such serious matters.

What is the criticism of the judicial decisions above?

The judicial decisions discussed above, while demonstrating a commitment to procedural integrity and the principles of Islamic justice, have faced several criticisms. These criticisms revolve around the practical challenges of implementing Tazkiyah al-Shuhood, the potential for miscarriages of justice, and the balance between strict procedural adherence and substantive justice. Here is a detailed analysis of the criticisms:

1. Complexity and Rigidity of Tazkiyah al-Shuhood: Critics argue that the stringent requirements of Tazkiyah al-Shuhood can lead to undue complexity and rigidity in the judicial process. The detailed inquiries into the moral and religious integrity of witnesses can be time-consuming and burdensome, potentially delaying the resolution of cases. This procedural rigor, while aimed at ensuring justice, can sometimes hinder the efficient administration of justice.

2. Potential for Miscarriages of Justice: The high standards required for witness credibility under Tazkiyah al-Shuhood can result in the exclusion of potentially reliable testimony. In cases where witnesses are deemed unqualified due to minor discrepancies or perceived moral failings, there is a risk of acquitting guilty parties or reducing their sentences inappropriately. This is particularly concerning in serious cases such as murder or zina, where the failure to meet Tazkiyah al-Shuhood standards can lead to lesser punishments under Tazir.

3. Subjectivity in Assessing Witness Credibility: The process of Tazkiyah al-Shuhood involves a significant degree of subjectivity, as judges must assess the moral and religious character of witnesses. This can lead to inconsistent application of the standards, where personal biases or differing interpretations of Islamic principles might influence the outcomes. The lack of clear, objective criteria for evaluating witnesses’ probity can undermine the fairness and uniformity of judicial decisions.

4. Impact on Victims and Witnesses: The rigorous scrutiny required for Tazkiyah al-Shuhood can be intimidating for witnesses and victims, potentially deterring them from coming forward or testifying. The requirement for witnesses to be morally impeccable and free from major sins might exclude many otherwise reliable witnesses, particularly in societies where minor moral lapses are common. This could result in a lack of available credible witnesses, impeding the prosecution of serious offences.

5. Balancing Procedural and Substantive Justice: While the courts’ commitment to procedural rigor is commendable, there is criticism that this focus can sometimes overshadow substantive justice. In cases where the procedural requirements of Tazkiyah al-Shuhood are not met, the courts often resort to Tazir punishments, which, although permissible, might not fully reflect the gravity of the offence. Critics argue that the emphasis should be on achieving justice rather than strictly adhering to procedural formalities, especially when substantial evidence of guilt exists.

6. Challenges in Modern Contexts: The application of Tazkiyah al-Shuhood in contemporary legal contexts can be challenging, given the differences between modern societal norms and the traditional Islamic principles on which these requirements are based. The courts’ insistence on witness credibility based on moral and religious grounds might not always align with contemporary views on justice and human rights, leading to criticisms regarding the relevance and fairness of such standards in today’s world.

The criticisms of judicial decisions involving Tazkiyah al-Shuhood highlight the tension between ensuring procedural integrity and achieving substantive justice. While the rigorous standards aim to uphold the principles of Islamic justice, they also introduce complexities and potential for inconsistencies that can impact the fairness and efficiency of the judicial process. Addressing these criticisms requires a careful balance, ensuring that the procedural safeguards do not hinder the pursuit of justice, and that modern legal principles are harmonized with traditional Islamic jurisprudence to provide fair and timely justice for all parties involved.