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Two accused persons, both previously married to other persons, were charged with the crime of committing zinā (fornication), which is prohibited in the Islamic Penal Code of Sokoto State, Nigeria. The man denied the charge and declared his innocence in court. The woman admitted to having sexual intercourse with the accused man and to being pregnant as a result. The Court held that the crime of zinā (fornication) is proved by a valid confession, the evidence of four witnesses, or by pregnancy outside of marriage. Because the first accused person denied that he had made an earlier confession, a confession could only be verified by the testimony of four witnesses. Because only two witnesses had given such testimony, the confession was not valid. The Court also held that retraction of a confession is permissible. Therefore, even if the first accused, the man, had earlier confessed, his denial of the charge in court amounted to a valid retraction of the confession. The Court convicted the second accused person, the woman, on the basis of her in-court confession and sentenced her to death by stoning after childbirth and weaning. The woman successfully appealed her conviction.

In Ayub Masih v. State (23 Aug 2022), Justice Qazi Faez Isa and Justice Syed Mansoor Ali Shah granted bail on an interim petition, pending trial, to the plaintiff Salamat Mansha Masih, who was arrested for “preaching and making blasphemous remarks” in April 2021. Masih was denied bail by the Sessions Judge and the Judge of the High Court, who relied on the First Information Report (FIR), which alleges that the petitioner was a preacher, and the statements of the four witnesses. Upon review, the Supreme Court declared that an “examination of the charge reveals material deficiencies ... [and] does not contain a number of prescribed requirements with regard to the framing of the charge,” casting doubt on the reliablity of the FIR and testimony from the four witnesses. Namely, the Court pointed to the misidentification of the petitioner as a preacher, and the lack of corroborating evidence for the witness testimony. Remanding the case without deciding on the merits, the Court charged the lower courts with observing the constitutional requirements for fair trials in blasphemy and other criminal law cases. Constitutional requirements of applying shari'a, alongside its fundamental rights and fair trial provisions, include consideration of the Islamic law doubt canon instructing judges to ”avoid criminal punishments in cases of doubt”), and thereby requiring heightened procedures, a beyond a reasonable doubt standard for criminal convictions. For further studies of the doubt canon, together with the heightened procedures, standards of proof, and interpretive norms requiring lenity in Islamic criminal law, see Intisar Rabb, Doubt in Islamic Law (Cambridge University Press 2015).

This case is an appeal of a zinā (fornication) conviction by the Upper Sharīʿa Court of Gwadabawa, Nigeria, on several grounds, including: the trial court's lack of jurisdiction on the grounds that the Sharīʿa Penal Code upon which the appellant's trial and conviction was based came into existence after the alleged commission of the offense, and the failure of the trial court to explain the nature of the crime to the accused person. During the proceedings, the Appellant's counsel retracted the confession that the appellant had made to the trial court. The Court held that a person cannot be punished for an offense not known to law at the time of commission. The Court further determined that, because the Sharīʿa Penal Law of Sokoto State had not been enacted at the time the offense was committed, the conviction was invalid. Furthermore, it determined that the confession of the Appellant before the trial court was invalid due to the defects in the charge and the failure to explain the offense to the Appellant. Even if the confession had been valid, its retraction upon appeal was valid because retraction of confession is valid at any time before judgment. Pregnancy by a divorced or widowed woman is not conclusive proof of zinā where such pregnancy occurs within 5-6 years of the previous marriage. It is an overriding principle (according to the doubt canon) that where doubt exists, fixed criminal penalties (ḥadd penalties) should be avoided. The Court quashed the conviction.

Two people were accused of jointly committing the offense of zinā (fornication). The Court determined that zinā is established through a confession, the evidence of witnesses, or pregnancy in the case of an unmarried woman or a woman without a husband. As a divorcee, the woman’s confession, pregnancy, and birth of a child constituted sufficient proof of the commission of zinā. The Court convicted her and sentenced her to death by stoning. The Court further determined that the accused man’s declaration of innocence backed by an oath on the Qurʾān was sufficient to exculpate him. The Court discharged him. The woman appealed her conviction.

Amina Lawal appealed her zinā (fornication) conviction by the lower court on several grounds, including: the inconclusive proof of zinā by the appellant's pregnancy because she had been married within the previous five years; the improper constitution of the Court as the kadi (qāḍī) had sat alone, without two other members, as required by law; and the invalidity of the appellant's confession by the failure of the Court to explain the meaning of zinā. Along with the grounds of appeal, the appellant’s counsel tendered a retraction of the confession that was made before the lower court. All grounds of the appeal failed. The Court held that the appellant’s confession before the lower court was valid as her testimony there indicated that she understood the meaning of zinā. This valid confession coupled with her failure to assert that her divorced husband fathered the child constituted proof of commission of zinā. The Court determined that sharīʿa (based on its understanding of Qurʾān, ḥadīth [prophetic reports], ijmāʿ [consensus], ijtihād [interpretation], and ʿurf [custom]) is supreme and overrides legislative enactments on the composition of the court. Therefore, the failure of the trial court to be constituted as required by legislation does not invalidate the decision, because the decision was issued in compliance with the dictates of sharīʿa. Amina Lawal successfully appealed this decision to the Sharia Court of Appeal.

Amina Lawal appealed the decision of the Upper Sharīʿa Court, Funtua, upholding her conviction of the capital crime of zinā (fornication) by the Sharīʿa Court of Bakori. As she had done in the appeals court, the Appellant retracted the confession made before the trial court. The Court held that a single confession is not a sufficient ground for a zinā conviction. Therefore, it determined that the Appellant's confession before the trial court was not a sufficient basis for conviction. Further, it determined that retraction of a confession for an offense that impinged on the “rights of God” [ḥuqūq Allāh] (such as zinā or alcohol consumption) is permissible and valid even after judgment, if made before the execution of a sentence. The Court also held that a child born by an unmarried woman within seven years of a former marriage is affiliated with the former husband [following the paternity canon in Islamic law], and under such circumstances, childbirth does not constitute proof of zinā. The Court allowed the appeal and quashed the conviction.

This fatwa, among other things, states that healthcare may be administered pursuant to the following conditions:

1. agreements between individuals and collectives represented by the Social Security Administering Body (Badan Penyelenggara Jaminan Sosial - BPJS) are to be in the form of mutually-beneficial gifts (akad hibah);
2. agreements between the government and individuals as recipients of fee-assistance are to be in the form of gifts, transferred to the Health BPJS as the representative of the collective;
3. agreements between collectives and the Health BPJS are wakalah or wakalah bil ujrah agreements;
4. wakalah or wakalah bil ujrah agreements are to cover the provision of authority for administrative activities, risk-management, social security funds investment/development, payments of claims by the Health BPJS to health facilities, and promotions;
5. agreements between the Health BPJS with other parties for the purposes of funding healthcare development are to take the form of a mu'awadhat agreement, for sale-purchase, ijarah, and profit-based agreements;
6. agreements between the government and the Health BPJS as a representative for collectives, are to be bequests to address healthcare funds in the red, or qardh agreements if the government does not yet have a special budget in place;
7. agreements between the Health BPJS and collectives are to be kafalah agreements or qardh agreements, to address healthcare funds in the red;
8. agreements between the Health BPJS and collectives are to be kafalah agreements or qardh agreements, to handle health social security funding asset liquidity problems;
9. agreements between the government and the Health BJPS as a representative of collectives are to be kafalah or qardh agreements, in the event the Health BPJS cannot provide bail-out funds, or cannot provide sufficient bail-out funds, to address health social security funding asset liquidity problems; and
10. agreements between the Health BPJS with health facilities are to be ijarah agreements.

Holding: For an oath to be legally valid, the person who is sworn must be aware that his statement is a solemn appeal to a Supreme Being, believe that what he declares is true, and include some corporal act, such as an uplifted hand or a hand placed upon scripture.

Procedural posture: Defendant moved to quash the return of Magistrate Robert Carson. Islamic law is not directly relevant, except the Court notes that “a Mohammedan [is sworn] upon the Koran” when taking an oath in court.

Judgment: Motion to quash the return of the magistrate denied in an opinion authored by Judge Staake.

Facts: Magistrate Robert Carson left his own district and entered another for the purpose of holding a bail hearing for the defendant, who was charged with a violation of the act of assembly. The defendant contended that state law prohibited the magistrate from acting outside of his own district, and that he had no authority to hold a hearing there. The defendant also argued that the oath administered to the complainant, upon which the arrest warrant was based, was not properly administered because it was not sworn upon the Bible and was not repeated verbatim with an upraised hand. The Philadelphia County Court of Quarter Sessions found that the magistrate performed a “purely ministerial act” in holding a hearing simply to fix bail, and that such ministerial functions could be performed outside of his district. With regard to the oath, the Court found that an oath need not be recited verbatim for it to be valid. Rather, the witness must recognize that he is solemnly being sworn and do some corporal act in appealing to God about the truth of his testimony. It may be administered “in any mode peculiar to the belief of the person sworn, or in any form binding on his conscience.” The Court notes that Jews can be sworn upon the Pentateuch and Muslims upon the Qurʾān, and that there is even a special procedure for “the Chinaman.” Therefore, the Court concluded, because the complainant’s oath was administered solemnly with a corporal act, the oath was valid.

Chapters on nominate contracts (endowment, sales, options, barter/ mu‘āwaḍa, hire and lease, partnerships -shirka, muzāra‘a, musāqāt, muḍāraba-, reward/ju‘āla, deposit, fungible and non-fungible loan, agency, financial and personal guaranty, assignment, settlement, pledge, gift), shuf‘a, wills, inheritance, marriage and divorce, mahr, and alimony took almost all of its substance from prominent Shi’i fiqh treatises. Other chapters (classification of properties, easement, usufruct, general rules of obligations and contracts, nationality, registration of civil status, domicile, engagement, guardianship, and evidence) are mainly influenced by Swiss and French Civil Codes and Swiss Code of Obligations.