10.4.5 证据法
10.4.5 The Law of Evidence
犯罪行为可以通过多种方式在法庭上得到证明,但这些方式仅限于能够确定罪责的手段。例如,凶器上的指纹等间接证据本身并不足以百分之百确定指纹主人有罪。因此,在伊斯兰法庭上,仅凭此类证据是不被接受的。能够提供确定证明的证言有两种:
There are various ways in which the perpetration of a crime can be proved in court, but these are restricted only to that which can ascertain definite guilt. For example, circumstantial evidence like fingerprints on a murder weapon are not in themselves sufficient to give 100% certainty of the guilt of the owner of the fingerprints. Therefore, this kind of evidence alone is unacceptable in the Islamic court. There are two types of testimony which can confer definite proof :
1) 目击者证词(沙哈达):亲眼目睹犯罪发生者的证词是有效的证据。但这仅适用于证人的可信度已经得到证实的情形。设有专门的法庭,其职责是核实所有出庭证人的品性、记忆力、智力等。
1) Eye-Witness Testimony (shahada) : The testimony of someone who has actually seen a crime occurring is a valid evidence. However, this is only applicable in the cases where the trustworthiness of the witness is proven. There is a special court whose purpose is to verify the character, memory, intelligence etc. of any witnesses who are brought forward.
例如在通奸(zina)的情况中,需要四位亲眼目睹者的证言才能证明这一罪行。安拉(SWT)说:
An example of this is in the case of adultery (zina) where the testimony of four eye witnesses are required to prove the crime. Allah (swt) says,.
“对于你们的妇女中行淫的,你们当中要有四个人为此作证。”[TMQ 4:15]
“As for those of your women who are guilty of lewdness, call to witness four of you against them.” [TMQ 4:15].
如果任何一名证人未能提供佐证的证词,或者指控该罪行的人无法提供四名证人,那么他们将受到诽谤(qadhf,诬告)的惩罚。
If any of the witnesses fails to bring corroborating testimony, or someone who accuses the crime cannot provide four witnesses, then they will be subject to punishment of qadhf (false accusation).
2)认罪(iqrar):各方一致认为,罪犯的认罪足以确立其罪责,并可据其认罪施以相应的刑罚。
2) Confession (iqrar) : It is agreed that the criminal’s confession is sufficient for the establishment of guilt and that, on the basis of his or her confession, the appropriate punishment can be inflicted.
艾布·达乌德记载:“一位来自黑米德部落的女子来见先知ﷺ,说:‘我犯了应受刑罚的淫行。’先知ﷺ说:‘你回去吧。’她便回去了,第二天又来见他,说:‘或许你想像对待马尔兹·本·马立克那样把我送回去。我指真主发誓,我已经怀孕了。’先知ﷺ对她说:‘你回去吧。’她第二天又来见他。先知ﷺ说:‘你回去,直到生下孩子。’她离开了。等她生下孩子后,把孩子带来见先知ﷺ,说:‘孩子在这里,我已经生了他。’先知ﷺ说:‘你回去,哺乳他,直到断奶。’等她给孩子断奶后,又带着孩子来见先知ﷺ,孩子手里拿着东西在吃。孩子被交给了穆斯林中的某个人,先知ﷺ就此下令处置她。于是为她挖了一个坑,先知ﷺ下令后,她被用石头打死。哈立德也是向她投石的人之一,他向她投了一块石头,当她的一滴血溅到他的脸颊上时,他咒骂了她。穆罕默德ﷺ对他说:‘慢点,哈立德。指以我灵魂掌握在其手中的主发誓,她的悔罪如此之深,即使一个不义地多取他人财物的人,若能如此悔罪,也会被宽恕。’随后,先知ﷺ下令处理她的后事,为她举行了殡礼,然后她被埋葬。”
Abu Daud narrated that : “A woman of Ghamid came to the Prophet (saw) and said, ‘I have committed a punishable sexual act.’ He replied, ‘Go back.’ She then returned and on the next day came to him again and said, ‘Perhaps you want to send me back as you did to Ma‘az ibn Malik. I swear by Allah that I am pregnant.’ He said to her, ‘Go back.’ She returned to him the next day. He said, ‘Go back until you give birth to the child.’ She left. When she gave birth to the child she brought the child to him, and said, ‘Here he is! I have given birth to it.’ He said, ‘Go back and suckle him until you wean him.’ When she had weaned him, she brought the boy to him with something in his hand which he was eating. The boy was then given to a certain man of the Muslims and the Prophet (saw) commanded regarding her. So a pit was dug for her, and he gave orders about her and she was stoned to death. Khalid was one of those who were throwing stones at her. He threw a stone at her. When a drop of her blood fell on his cheek, he abused her. Muhammad (saw) said to him, ‘Gently Khalid. By Him in Whose hand is my soul, she has repented to such an extent that if one who wrongfully takes an extra were to repent to a like extent, he would be forgiven.’ Then giving command regarding her, he prayed over her and she was buried.”.
然而,如果认罪者撤回其认罪,那么刑罚应立即停止,因为罪行已无法确定地得到证实。例如,在执行刑罚期间,认罪者逃跑或开始抗议,情况也是如此。
If, however the confessor were to withdraw his or her confession, then the punishment would be stopped immediately, as guilt could no longer be definitely substantiated. This would also be the case if, for example, during the punishment the confessor ran away or began to protest.