To refrain from testifying in an Islamic Court is clearly classified among the ‘Greater sins’ according to the authentic tradition narrated by Hazrat Abdul Azīm. There are some situations when it is Wajib to prove right what is right and to prove wrong that is wrong. In the narration mentioned in the previous discussion, Imam Muhammad al-Baqir (a.s.) states that to conceal evidence is a ‘Greater sin’. He presents the following verse as the proof:
“...and do not conceal testimony, and whoever conceals it, his heart is surely sinful; and Allah knows what you do.” (Surah al-Baqarah 2:283)
This verse mentions the sinful heart (his heart is surely sinful). There are two noteworthy points in this. One: That the concealing of testimony is a sin of the heart. The heart alone commits it, and other organs are not apparently involved in it. The person hides the reality in his heart and does not speak out. Secondly, just as the heart is superior to all the organs of the body the sin associated with the heart is also greater than the sin performed with other organs. It is just like the obedience of Allah (S.w.T.) through ones heart is much superior than obeying Him in actions. It is this same heart that involves one in a great sin like polytheism. These sins of the heart are definitely more than sins associated with other organs. One of the sins of heart according to the ayat of Qur’an is concealing evidence. In order to emphasise, Allah (S.w.T.) says in the later portion of this ayat, “...Allah knows what you do”, so that the sinner may realize that even though people may not be aware of Allah (S.w.T.) is aware of his sin and He will certainly punish him for it.
Allah the Almighty also says,
“...and the witnesses should not refuse when they are summoned.” (Surah al-Baqarah 2:282)
Similarly in another verse, Allah (S.w.T.) says,
“And who is more unjust than he who conceals a testimony that he has from Allah?” (Surah al-Baqarah 2:140)
Such a person is like the Jews and the Christians, who had seen the characteristics of the Holy Prophet (S) in the Torah and Injīl but deliberately concealed them.
In Surah an-Nisā’, the Almighty Allah (S.w.T.) says,
“O you who believe! Be maintainers of justice, bearers of witness for Allah’s sake, though it may be against your own selves or (your) parents or near relations; if he be rich or poor, Allah is nearer to them both in compassion; therefore do not follow (your) low desires, lest you deviate; and if you swerve or turn aside, then surely Allah is aware of what you do.” (Surah an-Nisā’ 4:135)
Thus one must not conceal testimony due to the fear of the rich or mercy for the poor. One must not feel undue compassion for the accused who is poor. One should neither pay heed to ones own interest nor care for any other person while giving testimony. The Divine command should always be respected in entirety.
The following verse of Surah al-Mā’ida states:
“O you who believe! Be upright for Allah, bearers of witness with justice, and let not hatred of a people invite you not to act equitably; act equitably, that is nearer to piety, and be careful of (your duty to) Allah; surely Allah is aware of what you do.” (Surah al-Mā’ida 5:8)
According to this ayat testimony should be given only to seek the pleasure of Allah (S.w.T.). No feeling of enmity should be allowed to come in the way of stating the truth. Allah (S.w.T.) says in another verse:
“...and give upright testimony for Allah.” (Surah at-Talāq 65:2)
Imam Muhammad al-Baqir (a.s.) remarks,
“On the Day of Qiyāma, Allah shall cut off the flesh of one who conceals evidence; then order him to eat it before all the creatures.”1
Imam Muhammad al-Baqir (a.s.) also says that those who conceal evidence are described in the Qur’an as those whose hearts have sinned. ‘Hearts have sinned’ actually implied that ‘hearts have disbelieved’,” according to Imam (a.s.)
Another tradition recorded from Imam (a.s.) is thus:
“One who goes back upon his testimony or conceals it wholly, Allah shall cut off his flesh and force him to eat it before everyone. And when he will enter Hell he would be chewing at his own tongue.”2
Hazrat Imam Musa al-Kadhim (a.s.) says,
“When you are asked to give evidence, give it. For Allah says:
“Surely Allah commands you to make over trusts to their owners...” (Surah an-Nisā’ 4:58)
Evidence is itself a trust. Allah (S.w.T.) also says,
“And who is more unjust than he who conceals a testimony that he has from Allah?” (Surah al-Baqarah 2:140)
The following tradition of Amir ul-Mu’minīn ‘Ali (a.s.) is recorded in Tafsīr ‘Ali Ibn Ibrahīm Qummi:
“One who possesses some evidence, has to make it known. And when he is asked for it, he must give it. He should not fear anyone’s criticism. He must fulfill his obligation of Amr bil Ma’rūf (enjoining good) and Nahi Anil Munkar (forbidding evil).”3
Is it Wajib to become a witness if one is requested to do so by a believer brother, in order he may achieve some benefit from the case he is pursuing in an Islamic Court? According to most of the Mujtahids it is Wajib. Allah the Almighty Himself says:
“.,.and call in to witness from among your men two witnesses; but if there are not two men, then one man and two women from among those whom you choose to be witnesses, so that if one of the two errs, the second of the two may remind the other; and the witnesses should not refuse when they are summoned.” (Surah al-Baqarah 2:282)
Hisham says that Imam Ja’far as-Sadiq (a.s.) said,
“And the witnesses should not refuse when they are summoned.” (Surah al-Baqarah 2:282)
And in the succeeding ayat,
“...and do not conceal testimony”, meaning concealing testimony from a Shari’a judge.”
Numerous traditions state that to be a witness is Wajib (obligatory). For example, Muhammad Bin Fuzail asked Imam Musa al-Kadhim (a.s.) the meaning of the above ayat (Surah al-Baqarah 2:282)
“And the witnesses should not refuse when they are summoned.”
Imam (a.s.) replied,
“When someone calls you to give evidence in a matter of some debts or some right, then you do not have the choice to ignore it.”4
Of course the Qur’anic command in the verse 282 of Surah al-Baqarah asking the witness to testify before the Shari’a judge implies that the person had in the first instance been a witness to the transaction etc.
The person who has witnessed the transaction etc. has to exercise extreme care and caution in this regard. He must memorise all the details or put them in writing, if necessary, so that there is no scope for doubt or misunderstanding in future. If this person is called upon to be a witness, it is Wajib on him to comply, even if he has to travel some distance.
Hazrat Imam Ja’far as-Sadiq (a.s.) says:Hazrat Imam Ja’far as-Sadiq (a.s.) says:
“Du’a of four types of people is not answered:
A Person who sits idle at home and prays to Allah to provide him with sustenance is told, ‘Have We not ordered you to make effort for obtaining your sustenance?’
The person who prays for some misfortune for his wife. He is told, ‘Have We not given you the choice of giving her divorce if you do not want such a wife?’
One who had squandered the money and spent it in evil ways. Now if he prays for sustenance, he is told, ‘Did We not order you to spend in moderation?’
One who gives a loan to someone but does not make anyone witness it. Hence if the borrower refuses and the creditor prays, he is informed, ‘Had We not ordered you to have witnesses?’”5
There may be occasion when a person has not directly witnessed a transaction but has some information for having heard or seen something related to the issue. If the information he has can save a Muslim from harm or enable him to secure his right, it is Wajib on this person to testify if he is summoned. If he is not summoned, it is Wajib for him to volunteer to testify by approaching the Shari’a judge with the information he has. If by not disclosing what he knows, a Muslim is harmed or loses his right, it is Harām to remain silent.
In short if a person is capable of helping the oppressed or prevent the oppressor from oppressing, it is Wajib on him to do so.
It is not Wajib to give evidence in a situation where not testifying does not cause any harm to a Muslim, nor does it deprive him of his right. In this case a person can even refuse to testify even if he is ordered to do so, because neither is he a direct witness to the dispute nor is his silence harmful in anyway.
Muhammad Ibn Muslim says, quoting an authentic tradition from Imam Muhammad al-Baqir (a.s.): “If one hears an evidence (i.e. he becomes a witness) but he had not been made a witness, then if he likes he can testify or he can prefer to remain silent.”6
The witness is required to pay attention to all the aspects of the matter that he has witnessed and when he is testifying, he must only say that, about which he is certain. He must not mention those things, which he himself has not heard, or seen. It should be clear as the Sun, as mentioned in tradition.
It should be known that a testimony should not endanger the life, property or honour of a Muslim. It should also not pose a threat to the life, property and honour of the witness. It is Wajib to give evidence and Harām to conceal it so that justice is established in the society and injustice is eradicated. The oppressor ought to be punished and the right may be restored to its owner but if the testimony itself becomes the cause of oppression it is not Wajib to testify. Rather it is Harām to do so and it is Wajib to conceal evidence. For example if a person knows that if he testifies against a particular oppressor, the oppressor will take revenge on him or on his relatives or plunder his wealth, then it is Wajib to conceal evidence. Similarly, there may be a situation where a debtor deep in debts is unable to clear his dues because of his poverty. At the same time he cannot prove his helplesness and the creditor is not prepared to spare him. In this case also it is Wajib to conceal evidence, if the evidence given by a witness will cause the poor debtor to be oppressed.
The following traditions of our Ma’sūmīn (a.s.) emphasise the justification of concealing evidence under special circumstances.
Hazrat Imam Musa al-Kadhim (a.s.) says:
“Give evidence for the sake of Allah even if you have to testify against yourself, your parents or your own relatives - But you must not cause harm to your believing brother by concealing evidence. However, if your believing brother is going to be oppressed, then do not testify.”7
Dawūd Ibn Hasan says that he heard Imam Ja’far as-Sadiq (a.s.) saying:
“Give evidence for the sake of Allah, even if you have to testify against your parents or your own son. But do not give evidence to cause harm (Zaīr) to your believing brother.”
The narrator says that, ‘I asked, “What is Zaīr?” He (a.s.) said,
“It is when someone who has a right, and in order to obtain it he resorts to oppression, contrary to the order of Allah and the Holy Prophet (S). For example, a man is indebted to another, but the debtor is in straitened circumstances. In this situation, Allah has ordered that he must be given respite till he becomes self-sufficient. And (Allah) says,
...then let there be postponement until (he is in) ease…
Now if in spite of this the creditor summons you to testify, and you know the poverty of the debtor, then it is not permitted for you to testify (that he has taken the loan).”8
Muhammad Ibn Qasim Ibn Fuzail narrates a tradition from Imam Musa al-Kadhim (a.s.). He says, “I asked Imam (a.s.), ‘One of your devotees has taken a loan from an enemy of yours. The creditor wants to oppress him and have him imprisoned. Allah (S.w.T.) knows that he has no money to repay the debt, neither is he capable to do so at present. He does not even have al-Bayyina (two just witnesses) to prove his bankruptcy. Then is it allowed for him to take an oath so that he can prove his bankruptcy and obtain respite till the return of favourable conditions? And if from your Shias there are some witnesses who can testify against him, (that he has taken the loan) can they testify?’”
Imam Musa al-Kadhim (a.s.) replied,
“It is not permitted for them to testify. And it is not permitted for the creditor to oppress the debtor.”9
When we speak about Harām testimony that causes harm to a Muslim, we mean a wrongful harm or unjustified oppression but if the person deserves to be punished, it is Wajib to give the evidence. For example a person commits a crime. The witness of this crime does not testify only because if he does so the one against whom he testifies will demand the debt which the witness owes him. This is not a valid excuse for withholding evidence. The criminal must be punished according to Shari’a even if the witness has to suffer a monetary loss. However, if the hardship for the witness far outweighs the seriousness of the crime of the accused then the witness has a valid excuse to refrain from testifying.
It must be mentioned that to be harmed is different from being deprived of some benefit. In the examples already mentioned, if a witness refrains from testifying due to fear that the accused will deprive him of some money, or that some benefit may not accrue to him; this does not amount to him being ‘harmed’.
However if the accused is the employer of the witness and will fire him from his job thus causing untold hardship, then it is allowed for the witness to refrain from testifying as it could be regarded as ‘harm’ in common parlance.
Hence we can conclude that false oath, false testimony and concealing evidence, each of these are Greater sins if there is no risk of any harm. If there is any chance of any harm to a Muslim or an innocent witness, then they do not remain sins - they are permitted. Rather in some circumstances these actions become Wajib as we have seen from the traditions of Ma’sūmīn (a.s.). However as far as possible one must give priority to the more important alternative.