Burden of Proof in Criminal Trials
Section 2 Burden of Proof in Criminal Trials
- Burden of proof in Hudud and Qisas offenses: The prosecutor shall prove every element of the offense beyond all doubt. Any doubt precludes Hudud and Qisas prefixed punishments and may be substituted with Ta’zir punishment.
- Burden of Proof in Ta’zir offenses: the prosecutor shall prove every element of the offense to the satisfaction of the court. A judge must be satisfied that the defendant had committed every element of the offense. An insignificant doubt shall not preclude the punishment.
Explanatory Notes
Section 2 adopts the majority of scholars’ opinion that any doubt precludes the punishment in Hudud and Qisas offenses while minor doubt does not preclude the punishment in Ta’zir offenses. This opinion is based on a Hadith that affirms that Hudud punishments should be averted by the slightest of doubts or ambiguities. See Al-Ashbah wa-al-Nazai’r, Jalal al-Din al-Suyuti and Al-Ashbah wa-al-Nazai’r, ibn Najim al-Hanafi. See also 8 Nihayat Al-Muhtaj Ila Sharah Al-Minhaj at 16, Imam Shams al-Din Muhammad b. Ahmed al-Ramli, See also, Art.4, Al-Majalla AL- Ahkam Al-Adliyyah (The Ottoman Courts Manual)
