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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 14 · صفحة 259

الترجمة · EN

and commanded the calling of upright witnesses. He, Glory be to Him, said: "And bring to witness two just men from among you" (10). He considered satisfaction regarding the witnesses, saying, Glory be to Him: "From among those whom you approve as witnesses" (11). Thus, overturning the ruling is obligatory due to the absence of integrity, just as it is obligatory to overturn it due to the absence of Islam. Furthermore, corruption is a quality which, if established before the judge prior to the ruling, would prevent it; therefore, if two witnesses testify that it was present at the time of the ruling, the ruling must be overturned, like disbelief or slave status in cases of legal punishments. Once this is established, Abu Hanifa said: The judge shall not hear testimony regarding the corruption of the two witnesses, neither before the ruling nor after it. Whenever the defendant (12) impugns the evidence, his evidence regarding the corruption shall not be heard, but rather he is asked about the two witnesses, and testimony is not heard regarding corruption; for no one's right is attached to corruption, so no claim or evidence is heard regarding it. Our argument is that it is a quality upon which a ruling depends, so the claim and evidence regarding it are heard, just like character verification (tazkiya). His statement that "no one's right is attached to it" is rejected; for the right of the one against whom the testimony is given is attached to their corruption (13) in preventing a ruling against him before the judgment and overturning it afterwards, and absolving him from the seizure of his property or punishing him without right; therefore, it is mandatory that the claim and evidence regarding it be heard, just as if he had claimed the witness's slave status (14) without claiming it for himself. Furthermore, if the evidence regarding corruption (15) were not heard, it would lead to injustice against the one against whom the testimony is given; for it is possible that no one knows the corruption of the two witnesses except the witnesses of the person against whom the testimony is given. If their testimony is not heard and he is ruled against based on the testimony of the two corrupt witnesses, it would be an injustice against him. As for if evidence is established that he ruled based on the testimony of two parents, or two children, or two enemies, one should look (16) at the judge who ruled based on their testimony. If he is one who holds the view of permitting a ruling based on their testimony, his ruling is not overturned; because he ruled according to his Ijtihad in a matter where Ijtihad is permissible, and he did not contradict a text or consensus. And if he is one who does not hold the view of permitting a ruling based on their testimony, he shall overturn it; because the judge who ruled based on it believes it to be invalid. The difference between property and destruction is that if the property still exists, it must be returned to its owner; for every person has more right to their own property. And if it is destroyed,

الحواشي

(10) Surah at-Talaq 2. (11) Surah al-Baqarah 282. (12) In the original, there is an addition: "claimed". (13) In A: "by himself". (14) In M: "the witnesses". (15) In M: "the corruption". (16) In M: "a consideration" (nazaran).

السابقمجلد 14 · صفحة 259التالي
السابق14·259التالي