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JSLAMIYYAT 15 (/994) 71 - 88

Islamic Law of Evidence in Confession (Iqrar):

Definitions and Conditions

MOHD. NASRAN BIN MOHAMAD

ABSTRAK

Tulisan zm cuba untuk membandingkan secara umum antara Undang-

Undang Keterangan dan Prosedur Islam dengan apa yang diamalkan oleh
Undang-Undang Keterangan dan Prosedur moden khususnya mengena1
takrif dan syarat-syarat pengakuan salah atau 1qrar Di dalam Islam,
pengakuan safah merupakan salah satu cara yang sah bag1 mensabttkan
tertuduh di dalam mahkamah keadilan. Pengakuan di dalam mahkamah
terhadap tuduhan kesalahan yang dilakukan secara tekniknya dikena/i
sebagaz pengakuan bersa/ah. Namun, tidak semua pengakuan bersalah
boleh ditenma oleh mahkamah. Oleh ,tu terdapat beberapa syarat yang
mesl! diikut1 sebelum hakim boleh menenma pengakuan bersalah bagz
men;atuhkan hukuman terhadap tertuduh.

ABSTRACT

This article 1s an attempt to compare generally between Islamic Law of

Evidence and Procedure with those of Modern Law especwlly pertammg to
us defimtzons and conditzons. In Islam, confesszon 1s one of the important
legal methods to convict an accused m the court of;usllce. The adm1sszon
before a court of a charge of comm1ss1on of offence zs tecmchal/y known as
confesszon. Yet, not all confession are admissible by the court. There are
several conditzons to be valid under Islamic law before the ;udge can accepl
such a confession and impose the punishment on the accused.

INTRODUCTION
The cornerstone of the both Islamic law of Evidence and Procedure and
Common Law system 1s that everyone 1s presumed innocent until proven
guilty ma court of law In Islamic law, this pnnc1ple 1s fundamental. The
corollary to this pnnc1ple 1s that the burden of proof 1s on the com-
plainant. These rules are revealed m the Qur'amc verse:
·'And those who produce not four witnesses to support their allegation, flog them
with eighty stripes" (al-Nur, (24):4)
The rules are also found in the following tradition of the Prophet:
72 Istam1yya1 15

If men were to be granted what they clrum, some will claim the wealth and lives of
others. The burden of proof 1s on the propenent; an oath 1s incumbent on him
who demes (al-Tanmz1 1931. 2)

T hese fundamental pnnc1ples run throughout both Islamic law and

Common law They are especially important m crmunal law as they
embody the presumption of mnocence and place the burden of proof of
the accuser.
The obJeCt of the Islamic law of evidence 1s to formulate pnnc1ples
which are essentials for provmg facts relevant for disposal of a case. In
article 77 of the MeJelle 1t 1s provided:

The object of evidence 1s to prove what 1s contrary to the apparent fact, the object
of oath 1s to ensure the contmuance of the ongmal state.

A fact can be proved m four ways before a court of law·

a) Adm1ss1on/Confess1on (al-Jqrli.r)
b) Testimony of witnesses (al-Shahli.dah)
c) Oath (al-yamm)
d) Circumstantial Evidence (al-Qarmah)

Confession 1s one of the important legal methods to find someone guilty

m the court of law When someone was accused on a certam cnme and he
admits 1t or makes a confession about his offence, then the Judge when he
feels satisfy that the adm1ss1on made without any doubt or amb1gu1ty,
must convict the accused and impose the pumshment on the defendent.

DEFIN ITION OF !QR.AR

Literally 1qrli.r means declaration or recogmt10n or adm1ss10n. In Islamic
law, the Muslim Junsts have different pomt of views about the defimt10ns
of 1qrli.r·

a) The Shafe1 school defined 1qrli.r as:

1. Informing a nght of another by informal agamst himself or;
11. acknowledgment (al-Khatib 1958, 229)
iii. refenng to something not belonging to a person making 1t (al-
Nawawt n.d., 189)

Whereas the Hanafi School defined 1qrli.r as:

1. The notification or avowal of the nght of another upon one's self
(Hedaya 1987, 426)
Jslam1c Law of Evidence m Confesswn ( Jqriir ). 73

11. The notification of nght or mference of another against oneself

(Madkur 1964, 79)

According to Article 1572 of the MaJelle, 1qrar 1s:

For someone to admit the nght of another agamst himself

Article 64 of the Is/amrc law of Evidence (Pakistan) defined iqrar as:

Givmg of mformat1on by a person that he 1s under some obligation to another

person m respect of some nght.

Whereas section l 7{a) of the Evidence Act of The Sharzah Court (Federal
Tentorry) 1989 defined 1qrlir as:

A statement, oral or documentary or usmg gesture, by a person that he 1s under

some obligation to another person m respect of some nght, and which 1s made by
any person and under any circumstances herem after menuoned.

Iqrar 1s therefore a specific adm1ss10n or acknowledgment as a means of

proof to clearly indicate a nght or interest of another against oneself, or
to admit of an offence or liability against oneself. It 1s a relative proof in
that 1t affects only the person making such a confess10n.
In Western Common law, vanous of defimt1ons are given by the
western JUrtsts. Unlike Islam1c law, they dev1de 1qrar mto two dev1s10ns
1.e. adm1ss10n and confess10n with different scopes and ideas.
Webster' s New Twentieth Century Dicuonary (Webster 1983) defines
adm1ss1on and confession:

Adm1ss1on 1s an assential fact or matter, the necessity of provmg wruch 1s

removed by the opposite party adm1ttmg 1t. Adm1ss1on are either upon the record
or by agreement between the parties to smt.

Confess10n 1s an acknowledgment of guilty by a person charged with a cnme. A

Judicial confession 1s made before a magistrate or court, whether to an official or
non official.

Whereas Jerome Prmce in his book Richardson on Evidence (Pnnce 1964,

279) defines adm1ss10n and confession:

An adm1ss1on 1s a statement made or an act done which amount to a pnor

acknowledgment by one of the parties to an action, or by his predecessor m
interest, that one of the facts relevant to the issues 1s not as the party now clam1s.
74 lslam1yylit 15

A confession 1s a direct acknowledgment of guilt made by the defendant m a

cnmmal prosecution.

In the Malaysian Evidence Act 1950, "adm1ss1on" and "confession" are

defined as follows:

An adm1ss10n 1s a statement, oral or documentary which suggest any mference as

to any fact m issue as relevant fact, and which 1s made by any of the persons and
under the circumstances herein after mentJoned.
[Section l 7(a})

A confession 1s an adm1ss10n tnade at any time by a person accused of an offence,

statmg or suggestmg the inference that he committed that offence.
(Section I 7(b))

In the above defimttons, we see that there 1s a distmct difference between

an adm1ss1on and a confession. A confession 1s a special type of
adm1ss1on made by the accused statmg or suggest.mg the mference that he
committed the offence. An adm1ss1on on the other hand, 1s a statement
that merely suggests any mference as to any fact m issue as relevant fact,
and which 1s made by any of the persons and under the circumstances
herem after mentioned.

DISTINCTION BETWEEN ADM ISSION AND CONFESSION

As mentioned before, there 1s no special distmctJon between adm1ss10n
and confess10n m Islamtc Law of Evidence and Procedure. The both are
the same. That 1s why under Sec. 17 Enactment Evidence of Shanah Court
(Kelantan) I 989, only adm1ss10n 1s ment10ned. The word iqrlir or i't1rlif is
used mstead of adm1ss10n whether m Islamic Cnmmal or Civil cases.
In Western Cnmmal Law, confession generally means an acknowl-
edgment of guilt; adm1ss10n is acknowledgment of some facts not
mvolvmg cnmmal mtent (Fields 1982, 481). The distmction then lies m
the fact that a confession 1s an express acknowledgment of guilt, whereas
an adm1ss10n 1s c1rcumstant1al evidence of guilt (People v Bretagna, 298
N.Y 323 N.E 2d 537).
The word confession might suggest that only direct admissions of
guilt are covered by the doctnne now bemg discussed. This 1s not so. A
distmctlon 1s taken m some countnes between an adm1ss10n of a fact
from which guilt 1s directly deducible or which withm and of itself
imports guilt, which 1s a confession, and adm1ss10n of a particular act or
acts or circumstances which may or may not mvolve guilt and which 1s
dependent for such result upon other facts or circumstances to be
Jslam1c Law of Evidence m Confession ( fqrlir) 75

established (Elliot 1980, 184), which 1s not a confession but merely an

adm1ss10n (State v Porter 1897, 32 OR. 135).
But this distmct1on 1s not taken m England, where all cnmmal adm1s-
s1ons by an accused person count as confessions (Commission ers of
Customs & Excise v Harz, (1967] 1 AC 670). So there 1s no difference 10
this respect between "Yes, I killed him" and "I was near at the scene of
the cnme".
The Indian case m lmperatnx v Pandhannath (LR 6 BOM 34) falls
far short of holding that adm1ss1ons and confessions are the same thing
(Queen Empress v Meher Ali Mullick 15 Cal. 589, 593). This fact 1s
almost the same with Islam1c Law of Evidence. Sect10ns 25, 26, 27 and 30
of Indian Evidence Act form part of chapter II dealing generally with the
adm1ss10ns as defined m Sec. 17 of the same act. The obv10us reason
bemg that all confess10ns are mculpatory adm1ss10ns on the part of the
maker thereof. Thus to be a confession, adm1ss10n should conta10 an
acknowledgment of the guilt (A , Nagesia v Bihar State AIR 1966 Sc.
119). Therefore, all confess10ns are adm1ss1ons but every adm1ss1on may
not be a confess10n.
The broad distmct1on between an. adm1ss10n and a confess10n 1s that
the latter 1s a statement made by an accused person which 1s sought to be
proved against him 10 a cnm1nal proceeding to establish the offence,
while under the former they are comprised all other statements
amounting to adm1ss10ns as defined m Sec. 18 of The Indian Evidence
Act (5 MLJ Art. 12, 15). In order to determme whether a statement 1s a
confess10n of guilt or an adm1ss1on of a cnmmatmg circumstances, a
court must look to the statement itself.
Ratanlal concludes four mam differences between admission and
confession (Waight & Williams 1990, 56). There are:

A. A confession 1s a statement made by an accused person which 1s

sought to be proved agamst him m a cnmmal proceeding to establish the
com1ss10n of an offence by hrm; while an adm1ss10n 1s usualy applied to a
civil transaction and compnses all statements amountmg to adm1ss1ons
as defined m Sec. 18 of The Indian Evidence Act.

B. A confession if deliberately and voluntarily made may be accepted as

conclusive m itself of the matters confessed, while an adm1ss1on 1s not a
conclusive proof of the matters admitted, but may operate as an estoppel.

C. A confession always goes agamst the person makmg 1t, while an

adm1ss10n may be used on behalf of the person makmg 1t under the
Exceptions provided m Sec. 21 of the said act.
76 lsllim1yylU I 5

D The confession of one of two or more accused JOmtly tned for the
same offence can be taken mto cons1derat1on agamst the co-accused (Sec.
30). But an admission by one of several defendants m a smt 1s no evidence
agamst another defendant.

Therefore ihere 1s a difference. m the defimtlon of 1qriir under the

Shadah, and admission and confession under the Modern Evidence
Acts. Only confession and a part of admission that 1s agamst maker's
interest would be similar with 1qriir under the Shartah. Adm1ss1ons for
maker's interest would be contrary to the idea of 1qriir under the Sharfah.

DISTINCTION BETWEEN IQRAR AND

SHAHADAH (TESTIMONY)
Beside confession, the other fact to be proved 1s the testimony of
witnesses or al-shahiidah. Both Islamic law and Common Law recognised
that the testimony of witnesses plays the important role to ensure the
facts before a court shall be proved. Without al-shahiidah, such case shall
be reJected. In Islamic law, shahiidah 1s the second to confession or 1qriir
as a means of proof. That means, m the Shadah court, when someone
was accused on a particular cnme and he demes 1t, then the burden of
proof 1s on the plamtif. Thus, the Judge should ask the plamtif to bnng
his witnesses or whatever evidence to support his claimant.
Under Sec. 2(i) of the Islam1c Evidence Act (Pakistan) I 982, shahiidah
1s defined as:

To give true 1mformatton for the purpose of proving any nght, m or before a
court, m the presence of parties, whether present 111 person or by an agent or
presumed to be legally present by uttermg the word 'ashhadu' or by use of any
synonymous expression.

From that defimtion, there are several distmct1on between them.

They are:

A. Testimony of witnesses 1s not accepted if 1t 1s made without charges

or commencement of actions, but confession is admissible at any time
without wa1tmg the commencement of actions.

B. Testimony of witnesses 1s null and v01d if the matter/person which 1s

the subject of testimony 1s unidentified, but according to Ahmad Fath!
Bahans1 (Bahans1 1971, 162), 1t 1s accepted either the subject of adm1ss1on
1s identified or not. For example, if one person makes confession that he
has committed adultery but he did not know the woman's name, then his
lslam1c Law of Evidence m Confession ( lqriir} 77

confession 1s accepted, but the testimony of witnesses 1s unvalid without

identified the girl.

C. Testimony of witnesses 1s a proof to convict the accused whether

oneself or many but confession only implicates the accused but not his
accessories or conspirators. Article 75 of the MeJelle clearly states that "a
person 1s bound by his own adm1ss1on" Thus, confessmg to adultery
with a certa10 woman does not render her guilty, if the legal evidence
aga10st her 1s not present.

D Testimony of witnesses 1s valid if 1t 1s required by the court but

confess10n of not guilty can be made at any time whether before the court
or out of court.

E. Testimony of witnesses cannot be retracted after the punishment was

imposed, but the retracting of confession 1s accepted and ,t can be made
at any t1me before or after sentencmg (al-Mulla 1964, 19-20).

Some of the Muslim Jurists op10e that there 1s no differences between

1qriir and shahiidah regarding to the result of a tnal. When an accused
person admits comm1tt10g theft without any doubt, the pumshment
cannot be executed unless the pla10tif comes and makes the accusation.
Nevertheless, maJonty of the muslim JU nsts mcluding Abu Yusuf and
Imam al-Shafici held that the both zqriir and shahiidah are two different
th10gs.

LEGAL PRINCIPLE OF IQRAR

Three important element are mvolved 10 the confession process, namely·
1. Muqarrun: The person who makes such confession.
ii. Muqarrun lahu: The person 10 whose favour the confession 1s made.
n1. Muqarrun bih1: The subJect matter of confession (Saedon 1990, 43)

THE AUTHORITY OF IQRAR

There are verses of al-Qur'an and reports of Tradit10ns of the Prophet
which show that 1qriir 1s accepted as a means of proof;
a) Nay, man will be evidence aga10st himself, even though he were to
pm up excuses ( al-Qzyiimah, (75):14)
b) Let him who mcuers the liability dictate, but let him fears 10
Lord God, and not dim101sh ought of what he owes (al-Baqarah,
(2):282)
78 Isliimiyyiit 15

c) God said, do you agree and take my covenant as binding on you?,

They said, we agree. He said, then bear witness and I am with you
among the witnesses (Al Imran, (3):81)

In one had1th, the Prophet (PBUH) directed to Matz;

It has come to me that you had intercourse with a particular slave?, Ma1z said:
Yes. He adrrutted untill four times with this, then 1t was ordered that be be stoned
to death. (al Shawkani" 1987, 12)

In another tradition, the Prophet ordered his compamon named Unays

al-Aslam1 to go to the wife of the other man and if she confessed she will
be stoned to death. She confessed and was stoned to death. (al-Bukhari
n.d, 552)

CONFESSION IN ISLAMI C LAW POINT OF VIEW

In fact, all the Muslim Jurists are m agreement that confession 1s a fact
can be proved before a court of law in order to convict a person accused
of the act done. Imam Malik opines confession as an adrmssible
statement which bmds only on confessor with special ways and
conditions. Article 78 of the MeJelle states;

Evidence 1s an absolute proof in that 1t effects third person; adm1ss10n 1s a relative

proof m that 1t effects only the person makmg such adm1ss1on.

An accused person can be convicted and sentenced under the law on the
basis of his confess10n, provided that the Judge 1s satisfied that the
confess10n has not been extorted in any manner and that 1t 1s voluntarily
made by the accused. These facts will be further discussed under
Conditions of Confession.
In hudud cases, a retracted confession cannot be acted upon and
sentence awarded to the accused has to be suspended (Al-Sayut1 1936,
67). In civil cases on the other hand, if a person admits the nght of
another person, then no proof 1s required for de creemg the claim. The
adm1ss10n will be bending upon the person adm1ttmg the claim and
effective decree can be passed agamst him (Siddiqui 1985, 347).

CONFESSION AT COMMON LAW VIEW

While the common law rccog111sed that a confession might be both
reliable and cogent as evidence of guilt, a nd mdced saw no ob.1ect1on to a
conv1ct1on m cases where a confessio n was the only evidence against the
lslam,c law of Evidence m Confession ( lqriir) 79

defendant ( R v Ba/dry, cce [1852] 1 Den. cc 430), the law also recogmsed
that a confession could be regarded as reliable only when 1t 1s made freely
and voluntarily If coerced or forced, the reliablity of the confess10n
might be fatally compromised, and the mtegnty of the system of adm1rns
trauon of Justice 1t self made to suffer (Murphy n.d, 210). So far as
matters of fact are concerned, we have seen that adm1ss10n should be
founded upon the personal knowledge of the maker of the statement, and
will be reJected as evidence of the facts admitted where the admission 1s
based upon pure hearsay as to which the maker has no personal
knowledge (Murphy n.d, 211).

CONDITIONS OF CONFESSION (IQRA.R)

There are several conditions before an 1qriir can be accepted under
Islamic law and a Judge can accept 1t and impose the pumshment upon
the accused. These condit10ns can be dev1ded mto four sect10ns:
a) Conditions of the person makmg such confess10n (Muqarrun);
b) Condit10ns of the person m whose favour the confess10n 1s made
(Muqqarrun lahu);
c) Conditions of the matter which 1s the subJect of the confession
(Muqqarun bih1); and
d) Conditions of the terms of s1ghah.

CONDITIONS OF THE PERSON MAKING SUCH

CONFESSION (MUQQARUN)

SOUND MIND (ciiQIL)

Islam lays down a condit10n that the person who makes the 1qriir must be
sane or of sound mmd. Article 1573 of the Ma1elle provides that the
admission of a madman or person of unsound mmd is not good. According
to Section 18 ( 2) (b) of the lslam1c Evidence Act ( Federal Tentorry) 1989
that the admission of a person who 1s insane and unsound mmd shall not be
accepted.
The rationale behmd this reqmrement 1s that a person who 1s not
sound mmd cannot be imposed the obgat1ons of the Shar?ah (Tak/if')
(Hamilton 1987, 427). The Hadlth Matz 1s a best example to show that
the Prophet (PBUH) wanted to ensure Matz was really anciiqi/ person by
askmg him to admit four limes. In other narrations the Prophet asked
Ma1z that he may have merely kissed her or Just only saw her.
This requirement 1s m parallel with Section 118 the Malaysian
Evidence Act I950 that all persons are competent withnesses unless the
80 Jsllim1yyiit 15

court consider that they are prevented from understanding the questions
put to them or g1vmg rational answer to those questions by desease,
whether of body or mmd.
Section 77 (3) of the Police and Cnmma/ Evidence Act (Umted
Kingdom) 1984 defines a person as mentally handicapped when "he 1s Ill
a state of arrested or mcomplete development of mmd which includes
significant 1mpa1rment of mtelligence and social funct1onmg" Where the
confess10ns of a mentally handicapped person 1s nonetheless admitted m
evidence, Sect10n 77 imposes on the court a duty, m certam
c1rcum~tances, to warn the tribunal of fact of the dangers of conv1ctmg
such a person reliance on his confession.
.Thus, for both SharzCah and Malaysian Evidence Act 1950, a person
who 1s insane or unsound mmd cannot make a valid adm,sszon and
confesswn.

ATTAIN AGE OF PUBURTY (BALIGH)

As a general rule, a child 1s not allowed to make an 1qriir under the

Shar1cah. Section 2 of the lslam1c Evidence Act (Pakistan) states that
ba{[gh means a person who has attamed bemg a male the age of eighteen
or bemg a female the age of sixteen years or has attamed puberty wluch
ever 1s earlier. While under Sect10n 3 of the Islamic Evidence Act (Federal
Tentorry) 1989 defines ba/Tgh as a person who has attamed the age of
puberty according to Islamic Law.
Article 1573 of the MeJelle states that 1t 1s a condition that a person
who makes confess10ns should have arnved at discreat1onary age.
Therefore the confession of an infant 1s not good.
Both Sections of the Islamic Evidence Act Pakistan and Sect10n 18
(1) (Federal Tentorry) provide that iqriir must be made a person who 1s
Aqil and Baligh. While under Section 18 (2) of the same act states that
the confess10n of a mmor shall not be accepted. An exception of this rules
that a mmor who (is Mumayy1z and) has been authonsed by his Wali or
guardian to carry on busmess and deed with people, shall be regarded an
adult for the purpose of the Sections above and the adm1ss10n made by
him shall be accepted as valid m respect of matters relatmg to busmess
and dealing such as debt, tru~t, mudiirabah etc. This 1s also stated m Sec-
t10n 18 (3) of the Evidence Enactment of The Shanah Court (Kelantan) 1991.
Whereas under the Malaysian law of evidence, persons of tender
years are not competent to testify if they cannot understand the questions
put to them or give rational answers. This 1s provided for under Section
118 of the Evidence A ct 1950.
The Malaysian Evidence Act however 1s silent as to th~ age when a
per~on 1s considered as tender age and unable to understand the
Islam1c Law of Evidence m Confesswn ( lqriir) 81

questions put to him or give rational answer. This 1s a quest10n of law to

be derived by the court upon an assessment of the person of tender age.

FREE PERSON

Under Islamic Law, an 1qrar of a free man 1s valid and accepted for all
matters. The 1qrar of a slave 1s also valid for all matters mcluding hudud
and q1sas if he has been given pem1ss1on by his master to be mvolved m "
muciimalat"
This reqmrement 1s not stated m the Malaysian Evidence Act 1950.
However under Article 6 of the Malaysian Constitution provides that no
person shall be held m slavery Thus, the requirement of this condit10n 1s
not relevant under Malaysian Evidence act 1950.

FREE WILL AND CONSENT

Under Islamic law, an iqriir must be made vohmtarily a nd conc10usly

lqriir which 1s obtamed by force or when the person 1s unconc10us or
asleep 1s unvalid. Article 157 5 of the MaJelle provides:

" With regard to an adm1ss1on, the consent of the person who makes the
admiss1on 1s a condition. Therefore an adrruss10n made by compuls10n or force 1s
not good"

Section 18 (5) of the Islamic Evidence Act (Federal Tentorry) 1989 and
Evidence Enactment of the Sharzah Court (Kelantan) 1991 state that an
adm1ss1on shall be made voluntarily without coercion. Section 18 (7) of
the same Act provides that an adm1ss10ns made under the mfluence of
mtox1cants shall not be accepted m cases liable to hudud m ~.ccordance
with Islamic law This prov1s1on 1s also provided under Sect10n 65 (2) and
65 (3) of the Islamic Evidence Act (Pakistan).
Under the Malaysian law of evidence, a confess10n must be free from
any inducement, threat, promise or opress1on. This was stated under
Sect10n 24 of the Malaysian Evidence A ct 1950 Th 1, Sections also make 1t
clear that the mducement, threat or prom1sL' <li11uld provide to the
accused person grounds which would appear to 111111 to be reasonable for
supposmg that by makmg 1t he would gam any advantage or avoid any
evil of a temporal nature m reference to the proceeding agamst him. As to
the ,ssue of mtox1cat10n, Section 29 (1), of the same act provides that if
the confession 1s relevant pursuant to Section 24, 1t does not become
1rrelevant merely because 1t was made when the accused was drunk, such
a confession would be valid under the Malaysian law of evidence.
82 /sllim1yylit 15

HEALTHY

Actually m Islamic law, unwell or sick 1s not a precondition. Thus,

generally admissions made regarding corporeal property while m mortal
sickness 1s acceptable if there 1s no suspicion. Sect10n 19 of the Jslam1c
Evidence Act (Federal Tentorry) 1989 and Evidence Enactment of The
Shanah Court (Kelantan) prv1de that adm1ss1on by a person of other
person's nght upon him at the time of death illness may be accepted
according to Islamic Law
Adm1ss10ns made by a person who has no hem but made while m
mortal sickness 1s a kmd of bequest and 1s held good. Article I 598 of the
Ma1elle provides:

"If someone after he has made, while m mortal sickness, an adm1ss1on that
ex1stmg corporeal property, or a debt, belongs to one of his heirs dies, 1t 1s
dependent on the perm1ss1ons of the other heirs. If they pernut 1t, his adnuss10n 1s
held good, if they do not permit 1t, his admission 1s held not good"

However, if someone who 1s m mortal sickness makes adm1ss10n to a

strange woman as to property, and afterwards he has marned her and
dies, the admissions 1s unvalid. Article 160 I provides:

" The adm1ss1on of a s1ckman, m a time of mortal sickness to a stranger 1. e to

someone who ts not one of his heus, although 1t embrances the whole of his
property, whether ex1stm'g corporeal property or a debt, 1s good."

If a s1ckman makes an iqrar that he owes so much debt to so many

parties, his 1qrar 1s accepted and the debts are all treated as havmg the
same status. If a sick person admits that he owes certam person debts that
he secured (al Dayn al Qaw1yy) and unsecured creditors debts that are not
(al Dayn al Daclf), the secured debtors shall be paid m precedence over
unsecured debtors.
Under the Malaysian law of evidence, a person 1s not competent ifhe
1s prevented from understanding the question put to him or from g1vmg
rat10nal answers to those quest10ns by extreme old age or desease
whether of body or mmd (Sect10n I 18). However, if the person although
of extreme old age or of desease can still understand the quest10ns put to
him or can give rat10nal answers to those quest10ns, then he 1s still
competent. According to David Baker m his book The Modern Law of
Trust, he says although such person 1s competent, the validity of a gift
made by him through an adm1ss1on which has not been perfected yet
depends on the followmg four prmc1ples;
lslam1c Law of Evidence in Confession ( lqrlir) 83

1. The gift must have been made m conlemplat10n of death;

11. The gifts must have been made under circumstances mdicatmg that
the subject matter of the gift 1s condit10nal on death;
iii. The donor must have delivered the subject matter of the gift to the
donee or alternatively the means or part of the means of getting at
the subject matter; and
1v. The property must be capable of bemg the subJects matter of such a
gift (Baker 1983, 51-53).

NO SUSPICION

The person who makes an admission, under Islamic law must be clear
and free from all doubts or susp1c1ons. If there are doubts, the con-
fess10ns cannot be accepted.
Under the Malaysian law of evidence, the validity of an adm1ss10n or
confession 1s not governed by general concepts like doubt and susp1c1on.
Jt 1s determined by specific pnc1ples. Adm1ss1on 1s valid if 1t can fall
w1thm any of the Malaysian Evidence Act 1950. A confession 1s valid if
there 1s no inducement, threat, promise or oppression as provided m
Section 24 of the same act.

TNTENTIONALLY MADE

A person who makes an adm1ss1on must be serious and mtent10nally

under Islamic Law An 1qrlir made m unsenously 1s unvalid. The
senousness of 1qrar can be tracedknown through the words used and
s1tuat1on m which the 1qrar 1s made (Mahmud Saedon 1990, 49).
Whereas under Malaysian law of evidence, there 1s no specific
prov1s1on about this requirement. However, under Section 118 of the
Malaysian Evidence Act 1950, that "g1V1ng rational answers to those
questwns" can be mferred that such an adm1ss1on must be made seriously

A PERSON WHO MAK ES AN IQRA R MUST BE ID ENTIFIED

Islam lays down a condition that the person who makes the 1qrar and the
matter which 1s the subject of the 1qrlir must be 1dent1fied. This condition
1s important m order to ensure that the person can be subjected to claim.
There 1s also no specific prov1s1011 made under the Malaystan
Evidence A ct 1950 about this condition. However, under Section l 18 of
the said act, tha t "unders tanding the question put LO them'' can br mferred
that the person who makes the confession must be identified.
84 /s/am1yyii.t 15

A PERSON WHO MAKES AN ADM ISSION SHALL BE A PERSON WHO IS NOT

PROHIBITED FROM ADMINISTERING HIS PROPERTY (MAHJUR ALA YH)

In Islamic law, if a person who makes an adm1ss1on shall be a person who

1s not prohibited to admm1ster his property, then his adm1ss10n 1s unvalid
if the matter which 1s the subject of the 1qriir 1s about a property
tMugmah 1966, 161). This reqmrement 1s also stated under Section 18 (6)
of the Islam1c Evidence Act (Federal Tentorry) 1989 and the Evidence
Enactment of the Shariah Court (Kelantan) 1991.

A PERSON WHO MAKES AN IQRAR MUST UNDERSTAND THE

CONSEQUENCE OF HIS IQRAR

The last condition 1s that person who makes an 1qriir must be told the
consequence of hJs 1qrii.r If he 1s not bemg told, then the confession made
by rum 1s unvalid. This reqmrement 1s the same with Common law where
an accused 1s not to be taken at his words when he pleads guilty, unless
the plea 1s expressed m unmistakable terms with full apprec1at1on of the
essential ingredients of the offence (Heng Kim Khoon v P P [1972] I
MLJ 27, 31). The late Sharma J. considered this propos1lion as a rule of
law, to be applied with greater stringency when the offence charged 1s
complicated or senous. Section 173 (b) of the Cnmmal Procedure Code
provides that before a plea of guilty 1s recorded, the court shall ascertam
that the accused understands the nature and consequences of his plea and
mtends to admit, without qualificat10n, the offence alleged agamst him.

THE CONDITION FOR T HE PERSON IN WHOSE FAVOUR TH E

CONFESSION IS MADE (MUQARRVN LAHU)
1. The person m whose favour the 1qra.r 1s made must present at the
time of the subm1ss1on or still alive at the time and passed away
later. If the person to receive the 1qrii.r 1s not exist, as such, the 1qriir
1s null and v01d.
11. The person also must be eligible to accept the aforesaid of 1qrii.. If 1t
1s not eligible, the 1qriir 1s null and void.
111. T he person 10 whose favour the adm1ss1on 1s made must be iden-
tified. If two persons have been granted to receive the 1qriir of certain
properties without giving the proportionate between the two persons,
1t has been considered as null and v01d. The appomted Judge has no
power to cancel the 1qrar but to impose the eligibility of 1qra.r
1v The ·person m whose favour the zqriir 1s made must be the person
who have a reasonable ground m order to get the subJect matter of
1qriir (al-Anbant 1913, 81).
lslam1c Law of Evidence m Confession ( lqrii.r) . 85

THE CONDITION OF THE MATTER WHICH IS THE

SUBJECT OF JQRAR ( MUQARRUN BIHi)
1. The matter which 1s the sub.1ect of the 1qrar must be known
(identified). Tlus reqwrement 1s important m order to ensure that
matter/ thmg can be claimed by the cla1ment.
11. The terms of 1qrar must be said orally by the person made the iqrar

THE CONDITION FOR THE TERM OF "SIGHAJI''

There 1s only one condit10n for "s1ghah" to be implemented by the
parties 1.e. consummat10n (al-Anbani" 1913, 81).

CONCLUSION

From the above discuss10n, we may conclude that m Islamic law of

evidence, there 1s no special distmctlon between adm1ss1on and con-
fession. The both are the same. That was the case oflslam1c Evidence Act
m Pakistan, Kelantan and even Federal Tentorry, only "admission" 1s
mentioned. The word "lqrar" or "/Ctzraf" 1s used mstead of adm1ss10n
whether m cnmmal or civil cases.
Pertammg to the conditions of Confessions, the Malaysian Evidence
Act, 1950 does not emphasize on too many conditions as reqmred m
Sharlcah. The most crucial one 1s the ability of a person who makes an
adm1ss1on to understand the quest10ns put to lum or give rational
answers to those q uestions. However the conditions of Iqrar under
Sharfah are almost similar to the Civil law Notwithstanding for the both
ideas may be the same, there are material differences m relat10n to the
scope, effect and some conditions of a valid 1qrar as shown m the
discussion above.

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