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حولتواصلتبرّعبيانات النشرالخصوصيةشروط الاستخدامحق الانسحابإلغاء اشتراك
المغني لابن قدامة - ت التركي
مجلد 14 · صفحة 44

الترجمة · EN

the Exalted, regarding them. For whoever abandoned his religion during the time of the Messenger of Allah (peace and blessings of Allah be upon him) out of a preference for the religion of Islam, and accompanied the Messenger of Allah (peace and blessings of Allah be upon him), his uprightness ('adalah) was established. As for the statement of 'Umar, what is meant by it is that the default state is uprightness, but this does not preclude the necessity of investigation and knowledge of the reality of uprightness. It has been narrated that he was brought two witnesses, and he said to them: "I do not know you, and it does not harm you if I do not know you; bring someone who knows you." They brought a man, and 'Umar said to him: "Do you know them?" He replied: "Yes." 'Umar said: "Did you accompany them on a journey during which the true character of people is revealed?" He said: "No." He asked: "Did you deal with them in dinars and dirhams, wherein ties of kinship are severed?" He said: "No." He asked: "Were you their neighbor, knowing their mornings and evenings?" He said: "No." He said: "O son of my brother, you do not know them; bring someone who knows you." This is an inquiry that proves that nothing less than this is sufficient. Once this is established, four conditions are considered for the witness: Islam, reaching puberty, sanity, and uprightness. There is nothing among these that is hidden and requires investigation except for uprightness, so it necessitates inquiry, according to the saying of Allah the Exalted: "...from among those whom you approve as witnesses" (Qur'an 2:282). We do not know that one is approved until we know him or are informed about him. Thus, the judge orders the writing down of their names, their kunyas (patronymic names), their lineages, and records whatever distinguishes them from others. He writes down their trades, their means of livelihood, the location of their dwellings, and their place of prayer, so that he may inquire about them from their neighbors, the people of their market, their mosque, their neighborhood, and their sect. He writes: "Black or white," "bald or thick-haired," "grey-eyed or kohl-eyed," "aquiline-nosed or flat-nosed," "thin-lipped or thick-lipped," "tall, short, or of medium build," and the like, so that he is distinguished, and one name is not confused with another. He records the name of the one for whom testimony is given and the one against whom testimony is given, and the amount of the right, and he writes all of this for his investigators (as-hab masa'ilihi), a note for each one. We mentioned the one for whom testimony is given so that there is no kinship between him and the witness that would prevent testimony, or a partnership. We mentioned the name of the one against whom testimony is given so that he may be identified, lest there be enmity between him and the witness. We mentioned the amount of the right because he might be someone who believes in accepting it in small amounts but not in large amounts, so the soul of the certifier (muzakki) is satisfied with it if it is small, but not satisfied if it is large. It is appropriate for the judge to conceal from each of his investigators what he gives to the others in the notes, lest they collude. If the judge wishes, he may designate for his investigator someone to ask among those whom he knows, from the neighbors of the witness and people with knowledge of him. If he wishes, he may leave it open without designating who is to be asked. The inquiry shall be in secret, lest there be humiliation for the one being asked about, as the one asked might fear the witness, the one for whom testimony is given, or the one against whom testimony is given, in terms of what they might report, or he might feel embarrassed. It is appropriate that his investigators be unknown, so that they are not targeted with gifts or bribes, and that they be people of integrity in their sustenance and character, possessed of ample intellect, free from hatred and spite, lest they attack the witnesses or ask an enemy of the witness about him, who would then attack him, thereby causing the right of the one for whom testimony is given to be lost. They should not be from among the people of whims and partisanship, leaning towards those who agree with them against those who oppose them. They must be trustworthy and reliable, for this is a position of trust. When his investigators return, and two report uprightness, he accepts his testimony. If they report corruption (jarh), he rejects his testimony. If one of them reports uprightness and the other reports corruption, he sends two others. If they return and report attestation (ta'dil), the evidence of attestation is complete, and the report of corruption falls, because his (the adversary's) evidence was not completed. If they report corruption, it is established, and he rejects the testimony. If one of them reports corruption and the other reports attestation, both evidences are complete, and he gives precedence to the report of corruption. He accepts neither corruption nor attestation except from two, and he accepts the word of the investigators.

الحواشي

(7) In M: "wa suhba" (and companionship). (8) In B: there is an addition: "'Umar". (9) In B, M: "fiha" (in it). (10) In B, M: "jaran lahum" (a neighbor to them). (11) Extracted by Al-Bayhaqi, in: "The Chapter on who should be turned to in inquiry; the knowledge of him must be internal and long-standing," from the book "Adab al-Qadi" (Etiquette of the Judge). Sunan al-Kubra 10/125, 126. And by Al-'Uqayli, in: "Al-Du'afa' al-Kabir" 3/454, 455. In both of them, it is a single witness. (12) Surah Al-Baqarah 282. (13) In B, M: "wa yarfa'un" (and they record). (14) In M: "'an" (about/from). (15) It did not appear in: The Original.

السابقمجلد 14 · صفحة 44التالي
السابق14·44التالي