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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 14 · Page 206

Translation · EN

and al-Batti, al-Anbari, and Numayr ibn Aws. Ishaq said: "The people of knowledge have always held this view until these people [the opposing scholars] came along." Ahmad said: "A witness testifying to another witness is permissible, and people have always been upon this; Shurayh and those after him, except that Abu Hanifa disapproved of it." Abu Abd Allah ibn Batta inclined toward the view that no secondary witness (shahid far') is accepted for every original witness (shahid asl) except for two secondary witnesses. This is the opinion of Abu Hanifa, Malik, and al-Shafi'i; because the two secondary witnesses establish the testimony of the two original witnesses, the testimony of each one of them is not established by less than two witnesses, just as the acknowledgment of two people is not established by the testimony of two individuals, where one testifies against each of them. Our argument is that this is established by two witnesses, and two have already testified to what they establish, so it is established, just as if they had testified to the right itself. Furthermore, the two secondary witnesses are a substitute for the original witnesses, so their number (31) is satisfied by the same count as that of the original testimony. Moreover, this is a consensus, as mentioned by Ahmad and Ishaq, and because the two secondary witnesses do not transfer an obligation upon themselves from the two original witnesses, it is therefore necessary that the statement of one be accepted regarding it, similar to reports concerning matters of religion (diyanat). For they are merely conveying the testimony, and it is not an obligation upon them (32), which is why if they were to deny it, the judge would not make them repeat it nor would he demand it from them. This is the response to what they have mentioned. When this is established, whoever considers two secondary witnesses necessary for each original witness permits two witnesses to testify for each one of the two original witnesses. This is the opinion of Malik and the scholars of opinion (ashab al-ra'y). Al-Shafi'i said: "I have seen many judges and muftis permit it." He derived two views regarding it; one of them is its permissibility. The other is that it is not permissible until the secondary witnesses are four, with two secondary witnesses for each original witness. Al-Muzani chose this view because the party by which one side of the testimony is established is not established by the other side, just as if one originally testified [with a witness] (34), and then testified with another regarding the testimony (35) of the other original witness. Our argument is that they both testified to two statements, so it must be accepted, just as if they had testified [to the acknowledgment of two people, or to two acknowledgments of two rights] (36). It is not permitted for an original witness to testify as a secondary witness because this would lead to a substitute becoming an original in testimony regarding a right, and that is not permissible, and because they

Notes

(31) In M: "its number". (32) In B and M: "upon them". (33) In A and M: "an original". (34) Omitted from the original manuscript and B. (35) Omitted from A. (36) In the original manuscript: "two [witnesses] to two acknowledgments of two rights". In B: "to two acknowledgments, or to two acknowledgments of two rights". In M: "to two acknowledgments of two rights, or to the acknowledgment of two [people]".

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