Documentation and Evidence


Transactions related to business

O ye who believe! When you acquire a loan for a fixed period, record it in writing, and a scribe write it down between you with fairness; he who can write should not refuse to write, and just as Allah has taught him to write, he also should write for others; the one who has acquired the loan should have [the document] written down and fearing Allah his Lord, he should not make any reduction in it. If he on whom rests the responsibility of writing is indiscreet or feeble or unable to have it written, let his guardian do so with justice. And call in two male witnesses from among your men, but if two men cannot be found, then one man and two women from among your likable people so that if one of them gets confused, the other reminds her. And witnesses must not refuse when they are summoned. And whether the loan is big or small, be not negligent in documenting the deal up to its period. This is more just in the sight of Allah, it ensures accuracy in testifying and is the most appropriate way for you to safeguard against doubts. But if it be an everyday transaction, it does not matter if you do not write it down. And call in witnesses also if you sell or purchase anything. And let no harm be done to the scribe or the witness. If you do so, then this will be a transgression which will cling to you. And fear Allah. Allah is teaching you. He has knowledge of all things. (2:282)

This verse directs the Muslims to document monetary transactions whether in cash or in credit to safeguard against any dispute that may arise. Imam Amin Ahsan Islahi has summarized the directives mentioned in this verse in his "Tadabbur-i-Qur'an" in the following words:

1. Whenever a loan is acquired for a certain period, the transaction should be written down in the form of a document.

2. This document should be written down in a just manner by some scribe in the presence of both the parties. He should not be fraudulent in writing this down. A person who knows how to write should not refuse if he is called upon to do so. The skill of writing is a blessing of Allah, and, in gratitude of this, a person should help others whenever a need arises. The need for this piece of advice arose because in those times very few people knew how to write. Formal and legal documentation and registration had not begun and its inception was not an easy affair.

3. The responsibility of writing down the document rests on the borrower. The document should state the name of the person from whom he has borrowed, and like the person who has been entrusted with the responsibility of writing down, he too should uphold the virtue of piety in this affair, and in no way try to damage the parties involved.

4. If the borrower is nave, feeble or is not in a position to write down the document, his guardian or attorney should have it written down on his behalf with justice and fairness.

5. Two male witnesses should testify over this document. The words used are min
rijalikum (from among your men), which imply two things simultaneously: The witnesses should be Muslims, and secondly they should be known to the parties involved. The second thing which is specified in this regard is that the witnesses should be honest and trustworthy and of a sound character.

6. If two male Muslims having the said qualities are not available, then one man and two women can be selected to fulfill this responsibility. The requirement for two women is because if one of them commits an error the other may correct her. This is not because women are inferior, but because this responsibility is not very suited to their temperament and general sphere of interests and the environment they are used to. Consequently, the Shari'ah has given them some relief and assistance in it. This topic is discussed in detail in Surah Nisa.

7. People who have borne witness to a document should not desist from giving their testimony when they are called upon to do so because bearing witness to a truth is a great social service also, and as witnesses to the truth, it is a responsibility of the Ummah imposed on it by the Qur'an.

8. If the loan, whether it be small in amount or large, is acquired for a period and is not an everyday loan, one must not show aversion to writing it down. People who ignore this by considering it as a burden, sometimes get involved in severe disputes which produce far-reaching results merely because of this slackness.

9. All these directives are in accordance with justice, and they safeguard testimonies and protect people from doubts and disputes. So it is necessary to follow them for the general well being of the society.

10. Everyday loans/transactions are not required to be written down.

11. Witnesses, however, should be called upon important deals and transactions.

12. It is not proper for a party to harm the scribe or the witness if a dispute arises. Scribes and witnesses do a great social service, and if they are harmed, honest and cautious people will start avoiding these responsibilities and, except for professional witnesses, people will have difficulty in finding witnesses who are reliable. In present times, the reason honest and serious-minded people avoid these responsibilities is that whenever some dispute arises in such an affair, the witnesses have to face a lot of trouble and discomfort. They become the targets of defame, suffer monetary losses and even get killed. The Qur'an has stopped people from such excesses and warned that this is not a small offence that it may be forgiven. It is a transgression which will cling on to them, and they will not be able to save themselves from its evil consequences. This is nothing but an effort to raze down the foundation of the pillar of bearing witness to the truth - the very objective of this Ummah. (Vol. 1, p. 640-2)

Transactions related to will

Believers! When death approaches someone among you, and he is making a bequest, the testimony will take place in a way that two just men from among you will act as witnesses, or if you are in traveling and the calamity of death overtakes you, then two just men from outside you should discharge this responsibility. Detain them [ -- the two just Muslims --] after the prayer, and then if you have any doubts, they should swear by Allah: We will not accept any price for this testimony even if some kinsman offers it, neither will we hide this testimony of Allah. If we do this, then we would be among the sinners. But if it becomes known that they have proved dishonest, then let two others stand forth in their places from among the people who have been deprived of their right by these two witnesses; then they should swear by Allah, saying: Our testimony is truer than theirs and that we have not trespassed [beyond the truth] in our testimony. If we do this then we indeed should be among the wrongdoers. In this way, it is more likely that they will bear true witness or at least they will fear that their testimony may get refuted by that of the others. [Do this]. And fear Allah and listen and [remember that] Allah never guides the evil-doers. (5:106-108

In these verses, believers are directed about their wills and bequests with the same stress and emphasis as they are in matters of a loan and other transactions. A summary of these directives is presented below:

1. If death stares a person in his face and he has to make a will regarding his wealth, he should call in two just witnesses from amongst his Muslim brethren on this.

2. If death approaches him during a journey, and two Muslim witnesses are not available there, then as a last resort he can call in two non-Muslims witnesses.

3. If there is a possibility that those selected from among the Muslims as witnesses might show some bias to someone by altering their testimony then as a precautionary measure, they can be held back after a congregational prayer in the mosque and be asked to swear by Allah that they will not alter their testimony for some worldly gain or in partiality of someone even if he be their close relative, and, if they do some alteration, then they will be sinners.

4. The witnesses should know that this testimony is Shahadah Allah (the testimony of Allah). So even if they are dishonest in this even in the slightest way, they would be dishonest not only to their brethren but also to the Almighty.

5. In spite of this, if it comes to surface that these witnesses have shown bias to someone contrary to the will made by the deceased, then two people from among the brethren of the person who has become the victim of this injustice should stand up and swear that they are truer than the previous witnesses; that they have not committed any excess in this regard and that they will be wrongdoers before the eyes of Allah if they do so.

6. It is likely that after this further measure, the witnesses will not give a false testimony for they will have the fear hovering over them that if they commit any wrong, others will negate their oaths and in spite of being given preference, their oaths will be refuted.

 

(Translated from Ghamidi's 'Mizan' by Shehzad Saleem)  


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