' This is a reference made by District Criminal Court, Mirpur and it arises out of the following circumstances.
2. A criminal case titled State v. Basharat Ahmad and others, wherein the respondents are facing trial under section 14'15 of the Islamic Penal Laws Act of 1974, is pending in the District Criminal Court, Mirpur. The prosecution had cited, among others, two women witnesses, namely, Khateeja Begum and Makhtool Begum. On 22nd of January, 1984, both of the above-named women witnesses were present and the public prosecutor requested the Court to record the statement of one of the aforesaid witnesses but the learned counsel for the defence raised an objection and stated that both the women witnesses are required to be examined together in accordance with Islami Shariat.
3. The Court heard the learned counsel for the parties but could not return a unanimous verdict.
The learned Sessions Judge agreed with the Public Prosecutor and favoured the examinations of one woman as witness after the other, according to the prevalent procedure, whereas the District Qazi upheld the objection raised by the defence counsel and arrived at the conclusion that examination of both the women witnesses together, was the requirement of law. As both the members of the District Criminal Court differed on the point, this reference has been made to seek the solution of the point in controversy.
4. The learned Additional Advocate-General endorsed the point of view of the learned Sessions Judge and urged that the evidence of each of the women witnesses, is required to be recorded separately because this is the only method of testing the verasity of the witnesses and sifting the grain from chaff. The learned counsel for the defence, on the other hand, was reluctant to accept this view-point.
5. I have considered the points raised by the learned counsel for the parties and have gone through the order separately recorded by both the members of the lower Court. To find out the solution of the matter, referred to above, I have sought guidance from the Holy Qur'an verse No, 282 of `Sura-e-Al-Baqarah'. The relevant passage of the Verse and its Urdu and English translations are reproduced below {{URDU TEXT}} "And call to witness from among your men two witnesses. And if two men are not at hand, then a man and two women, of such as you approve as witnesses, so that if the one errs (through forgetfulness), the other will help her remember."
6.In the above-cited command of Almighty Allah, both of the women are to act as witnesses and in case, one of them forgets to give correct account of the matter in dispute, the other (second one) woman will help her remember the correct state of the disputed point. It means that both of the women will assume the character of witnesses and will act as such. This is only possible if both of them undergo the formalities of making Examination-in-Chief, cross-examination and re- examination, if so required and if during this course, one forgets to give a correct version of the disputed point, the second one will help her remember the correct version.
7.The purpose of the words used in the verse, can only be accomplished if both women are present together and the women, making the statement, suffers forgetfulness and the other helps her remember the correct account.
8.This view finds support from the work of eminent scholar Imam Surkhasi popularly known as Al- Mabsood Volume 17. The, learned author, at page 142, stated that both women witnesses will be examined together and to record their statements separately, is not permitted. His view, in his own words is reproduced below.
"It is not permissible to record the evidence of one woman alone (in the absence of the other woman."
9. Imam Tahavi, another eminent scholar in his work, "Al-Tahavi" expressed the same view. The relevant passage is reproduced below "You cannot separate them. This is a command of Almighty Allah, if one forgets, the other may help her remember."
10.In Durre Mukhtar Volume IV, page 576, Sheikh Muhammad Amin lbn-e-Abedeen popularly known as Sheikh Muhammad Abecleen, while dealing with the point of evidence of the women witnesses, has stated that one man and two women should give evidence. The two women witnesses should not be separated froth one another at the time of their statements as it is Commanded by Almighty Allah that one may help the other to recollect the true account of the point in issue. His own words are reproduced as under:-- {{ARABIC TEXT}} 11.The learned author of Raddul Mukhtar, has quoted an instance, in his great work where a woman, while appearing as a witness, drew the attention of the Judge, who wished to record her statement separately, to Verse No, 282 of "Sura-e-Al-Baqarah Al-Qur'an" and the Judge acted accordingly.
This instance related to a woman named (Jamul Bashar who was examined as a witness. The quotation from the Book is as follows :- {{ARABIC TEXT}} "It is said, A woman, Umm-Ul-Bashar by name came to give evidence before the Judge. The Judge ordered. Both (women) should be separated. She said, "You cannot do this because Almighty Allah has ordained, if one (woman) forgets, the other (woman) may help her remember:*
12. Syed Sabat Abi Al-Mohani, at page 304 on the authority of Al-Ashbah, Volume, I, page 206, while dealing with the issue in band, has stated in his great work. Fateh-ur-Rehamani, as follows :-- {{ARABIC TEXT}} "The Mothers of Imam Shaafi and Mursee, went to a Judge for giving evidence on certain point. The Judge wished to record their statements separately and asked for separation. The Mother of Imam Shafi said, Judge" "it was not so permitted. The God Almighty has ordained, if one forgets, the other may help her recollect." Thus, the.Judge left the idea of separatior ."
13. Maulana Ashraf Ali Thanvi. a great scholar in his esteemed work, "Ahkamul Qur'an" Volume I, page 508, while dealing with the subject of evidence of a woman, had stated that the evidence of two women witnesses is a substitute of .One, man witness, therefore, two. Women witnesses will follow the same order which a man witness has to do.
14. Ahmad Mustafa Al-Muraghi, in his Book Tafseer Al-Muraghi Volume III, published in Egypt, has stated that it is obligatory onlhe Judge to record the evidence of one woman witness in the presence of the other woman witness. The exact words used, relevant to the point in issue are reproduced below {{ARABIC TEXT}} "It is enjoined on . The Judge to record the statement of one (woman witness) in the presence of the other (woman witness) and complete the portion left by one from the statement of other."
15.Muhammad Rashid Raze Misri in his Book Tafseer Minari Volume III published in Beirut, has stated that it is not only proper' but is obligatory on the Judge also to enquire about the point in dispute, from one (woman witness) in the presence of the other (woman witness) because Almighty Allah has ordained that the evidence of two women witnesses, is a substitute for the evidence of one
(man) witness. The relevant passage from the Book is reproduced below with advantage :- {{ARABIC TEXT}} "It is not only proper but is also obligatory on the Judge to enquire about the point in issue from one woman in the presence of the other woman and complete the portion left by one, from the evidence of other "
16.Maulana Muhammad Ali Siddiquei, in his Book Tafseer Mauloomul-Qur'an published by "Adara- e-Taleemat-e-Qur'an Second Volume, at page 377 expressed the view that the Court is under obligation to record the statement of both women witnesses in the presence of one another. His own words are reproduced hereunder :- {{ARABIC TEXT}} 17.It will be useful to mention here that the subject of this reference was as to what procedure was required to be followed, while recording the evidence of women witnesses if three women witnesses are tilted by a party to prove his case, therefore, I have confined myself to the point referred to above and have not expressed myself as to on what subject the women witnesses are competent to give evidence.
18.Keeping in view the Qur'anic Injunction and the law, I hereby return the reference with the following observations :- "At the time of recording the statement, both of the women wine shall remain present before the Court and their statements shall recorded one, by one, according to the law and practice in vogue for recording the statements of witnesses. If during the course of the statements, one woman witness, making the statement, states something which, according to the other woman witness hearing such statement, is not the true account of the matter in dispute, she (the other woman) will be at liberty to help her remember the correct version."
19. The reference is answered accordingly.
THE END