CONCEPT OF CONFESSION IN COMMON AND ISLAMIC LAW

INTRODUCTION

Confession is a specific form of testimony, involving oneself, is used as a

form of proof in judicial matters. The value of confessions, however, are
discussed, and how generally request, cross checking them with objectives
facts and other forms of evidence (exhibits, admission, testimonies from
witnesses etc) in order to evaluate their truth value. Confessions were first
developed in the Roman Catholic Church under the sacrament of penance,
where the confession of a sin is considered to be absolving oneself.

This aspect concerning moral guilt has been carried on in various legislative
codes in which a criminal is considered worse if he does not confess to his
crimes.

However under Islamic law, admission or confession as confession is

referred to in Islamic law is one of the ways in which cases are proof.

A confession as a statement oral or written made by a person accused of

an offence, stating that he has committed that offence.

Confession has been recognized as a source of conclusive proof of a right

and a crime by the Holy Quran and the Sunnah of the prophet (p b u h) and
he implemented Hadd merely on the confession of the accused. And the
prophet has also said „speak the truth even though it is against yourself‟.

DEFINITION OF CONFESSION

In the law of criminal evidence, a confession is a statement by a suspect in

crime which is adverse to that person. Some authority such as Black‟s Law
dictionary, defines a confession in more narrow terms, as:
„a statement admitting or acknowledging all facts necessary for conviction
of a crime‟.

12 Black‟s Law Dicitonary 13 (1962)1 WLR 817 at 823, PC .

 Al- iqrar is the Arabic word for confession.
It literally refers to an admission or confession. There are different
definitions given by scholars which include the definition of Bin Arfa‟s that
an admission is a declaration which, if held to be the truth, only binds the
person who made it or had it made by his agent.
In Fathuul Aliyyul Maliki vol.1, it was defined as a:
„binding declaration by its maker in favor of another.
It must be clear and devoid of ambiguity”. Wali JSC, in applying this
principle held inter alia “for the principle of Iqrar or admission to apply,
such an admission must be clear, devoid of any ambiguity or equivocation.
It must be amenable to one and same interpretation of all time …where an
admission (its wording and context) is clear, it is binding on the court to act
upon it‟.
However, confession could be described as admitting liability in the issue
or issues before a court of law. It could be oral or written. It is a trite law
that a confession of crime by a sane, adult, which is made freely without
any element of compulsion, binds the maker.

LEGAL BASIS OF CONFESSIONS IN ISLAMIC LAW

In Islamic law, there must be legal basis for every principle of law. This
legal basis could be found in the primary source of law which is generally
known as the Holy Qur‟an and Sunnah of the Prophet (S.A.W) and also in
the secondary sources which comprises of so many others like Ijma, Qiyas,
Istishan, Customs among others. However, the legal basis of Iqrar can be
found in the Qur‟an ,Sunnah and to some extent Ijma.

QUR’AN There are numerous verses on the subject, but suffice it to

mention the following, Qur‟an Chapter 2 verse 282 „
Let him who incurs the liability dictate (to admit) but let Him fears his Lord
and not diminish aught what he owes‟.
In this verse, there is an order from Allah that if one incurs liability the
person must admit it fully. Allah also says:
„Nor it is lawful for them to hide what Allah had created in their wombs if
they have faith in Allah and the last day‟
.Q2:28 This is also an order that a woman must admit her pregnancy if at all
she is pregnant. Allah also says that: „O you who believe! Be staunch in
justice witness for God even though it is against yourself‟.
This signifies that in upholding justice as between human, admission must
be made.
SUNNAH
The prophet (PBUH) is reported to have said: ‘Speak the truth even though
is against yourself‟.
. The prophet executed „Maiz‟, the Ghamedia woman and the Guhaina
woman on the basis of their admission or confession of committing zina. It
has also been related on the authority of Jabir bin Abdullah who said that a
man from the tribe of Banu Aslam came to the Holy Prophet (PBUH) and
confessed to have committed zina and gave testimony against himself four
times. The Holy prophet then ordered to stone him to death.
18 Sahih bukhari.

IJMA
All companions and their followers have followed the prophetic way and
accepted admission as the highest and strongest means of proof in Islamic
of evidence.

DISTINCTION BETWEEN ADMISSION AND CONFESSION

It is of great cognizance to note that in common parlance, admission and

confession are confused together to mean full acknowledgment of guilt.
Usually, admission in relation to a crime is used to denote the admission of
a fact relevant to the crime, whilst confession is used to denote admission
of guilt. In Bob Daniels v. State19, the court of Appeal held that a statement
where the accused narrated certain implicating facts of the incident but
made no unequivocal admission that it was he who killed the deceased is
not a confession of guilt.

Tradition of the holy prophet in Sahih Bukhari

19 (1991)8 NWLR (Pt 212) 715 C.A 20 (

However, the definition of confession seems wide enough to include an
incriminating admission falling short of a full confession.

NATURE OF CONFESSION
The nature of confession is judicial or extra judicial, worldwide. It is
judicial when made in court in the course of proceedings, this otherwise
called formal confession, whilst extra judicial or informal confession are
those made outside the court, otherwise than in the course of proceedings.

Under Islamic law however, there divergent opinion as to the validity of

extra-judicial confession
According to Imam Abu Hanifah, if the confession took place outside the
court, it is not valid and no evidence will be accepted on that because if the
confessor confessed before the court then the offence will be considered
proved by confession and not by the evidence of the witnesses. But
according to Imam Maliki, Imam Shafii and Imam Ahmad extra-judicial
confession is valid if it is witness by two witnesses. Further Imam Maliki and
Imam Shafii apply it to all cases, and according to Imam Ahmad, four
witnesses are required in cases of Zina on the basis of the requirement of
four witnesses for its prove by testimony.

The jurists, however, opine that an extra-judicial confession, if voluntary,

can be considered sufficient. Proof for an offence liable for ta‟zir if it has
been made before any authorized forum or person or if it is witnessed by
two witnesses and with which the court is satisfied.

VOLUNTARINESS OF CONFESSION
According to Sec. 27(2) of the Evidence Act and the general position of
Sharia, no statement of the accused is admissible in evidence unless it is
shown to have been voluntary. The fact that it is voluntary made that a test
of admissibility and not of the truth of veracity of the statement.
 The section reads: „Confessions, if voluntary, are deemed to be relevant
facts as against the person who makes them only‟. In this connection, the
law recognizes a confession as relevant and having evidential value if
voluntary and freely given. If coerced, its relevance would be fatally
compromised, and it will not be admissible in evidence. It is also clear from
the provision of the section that tenable against the person that made
them only.

However, under Islamic law there are exceptional cases. Situation may
warrant the exercise of force to extract an Iqrar. That is where there is
strong suspicion and irrefutable presumption. It was reported that
Kinanata‟s had confessed been in possession of some money which was
hidden after he was punished by Ibn Zubayr.
This served as a basis for compulsory Iqrar and it thus follow that the
normal punishment for stealing will be admitted upon on the basis of
discovery of stolen property in his possession and not on the compelled
confession.
It is a known fact that in law there are general and specific situations.
Cases like these do exist i.e. a hardened and notorious criminal with high
degree of suspicion are compelled to confess. However, if they do, they will
be subjected to Hadd punishment until the subject matter is found in their
possession.
The crucial question which is always raised among the jurist is that;
Is it permissible to torture the accused to acknowledge the charge? Or any
approval of the charge under torture will spoil acknowledgment of the
charge?
The scholars differentiate confession between two cases, and the basis of
that disagreement, based on these following;
Accusation may be mere accusation, it may also be just accusation, in
another word, unfounded allegation and founded allegation.
Unfounded accusation is the one does not free from impurities this type of
accusation will not be a prejudice against the defendant, or affect his
choice; the decision of jurists is that, any impact on choice of accused
thereby will invalidate the acknowledgment and make it void.
Evidence has been deduced from the Book of Allah Almighty, and the
Sunnah of His - peace be upon him - and consensus scientists nation, and
analogical deduction.
if the rule of confession, which spoiled choice when appending torture t0
the alleged person, void and vain ,because of illegitimacy , it would be
prohibited to adjudicate any judgment on the ground of that confession.
The accusation which based on the presumption (founded allegation) is
different from the mere accusation (unfounded allegation) here the
evidence likely makes the accused to be thought he -most likely- has
committed the crime already.
Example; reputation for a people criminality in a certain type of crimes
such as theft, or climbing sites in order to storm the house, or a smell of
alcohol in the mouth drunk staggers in his walk, or great wealth on
someone who does not possess any resource or work which can generate a
lot of wealth this has prompted the dispute among the scholars to three
points :
The first to say: It is not allowed to torture the accused to acknowledge the
charge even though the charge is supported by probable presumption;
Hanafi, Maliki and Hanbali, with some of the Shaafai .
they quoted the following as evidence :
1-The evidence of the holy Quran and sunnah which prohibit torture the
alleged to confess the charge are inclusive, they include all cases, and
whether the accusation was devoid of clues or in conjunction with
presumption.
2-the presumption is enough evidence to inflict Ta'zir, and then forcing the
accused to carry on the confession of charge does not make sense, in fact,
that will lead to double the jeopardy. One will base on the presumption,
and another on the acknowledgment.
3: that torture without a legitimate reason is a forbidden act, forbidden
act must not be a way or a means of what can be seen as a right or
legitimate thing.
4 if it were permitted torture the alleged to confess the charge, then those
who do not care about the human right, would not respect human rights;
they would take the opportunity as a pretext for violating human dignity
5 the sanctity of human body, and respect of human dignity is proved with
certainty, from many verses of Holy Quran and the traditional of
prophet,PBUH, the prophet said ;” verily, your blood, your wealth, you
reputation and your skin are sacred to you” this is a clear evidence for
honoring and dignifying human dignity.
So the punishment of the accused which resulted from duress is resulted
from doubt and suspicion, and doubtful is not fit to remove certainty.
As stated in the general rule, certainty cannot be eliminated except by
another form certainty.
6 the felonies were preponderant in the age companions however, we
never get any argument concerning torture, despite of frequent falling
crimes, and that indicates they understand the resources Sharia and
sources that God - the Almighty .
The scholars further illustrated the issue concerning torture the accused
person to confess by bringing this authentic event happened during the
lifetime of the prophet.
It is related on the authority of Uraka Ibn Malik he said;” two men from
the tribe Ghaffar approached an oasis fed by the waters of Madinah at
which a number of the Ghafftan tribe were grazing their camels. When the
Ghafftan tribesmen awoke the next morning, they discovered that two of
their camels were missing and accused the two of Ghaffaris. And when they
took the two to the prophet and told him what had happened, he detained
one of them and said to the other “Go and look”. The man in custody was
treated as prisoner until his companion came back with the two camels.
The prophet said to the one who had kept with him: “ask Allah to forgive
me!” so Ghaffaris tribesman said: “May Allah forgive you O messenger of
Allah” and the prophet said and you and May he grant you martyrdom in
his way! Later, at the battle of Uhud, the man died and martyr.
In this instance, the sought forgiveness from one he detained on the basis
of no more than an accusation, that indicate illegitimacy of that detention.
The second: torturing accused. the view of Shafi'i jurists.
They quoted that the aim of torturing the accused is not to put him under
duress as to confess one particular thing, but he is only beaten to tell the
truth.
The third: if the defendant has a presumption of guilt it is allowed to be
tortured to acknowledge the charge. They cited the Hadith of Ibn Umar ,in
which he reported that the prophet fought inhabitants of Khaybar until
they were forced to take refuge in their fortress.
Seeing that their land, crops and orchards had fallen into Muslims hands,
they signed a treaty that their lives would be spared and that they could
take with them all that they could carry. All of their gold and silver,
however, would be left to the prophet .all of this was dependent on the
condition that they hide nothing. if they ignored this understanding ,they
would have no treaty and no protection.
Nonetheless, they hid some Musk with the money and jewelry belonging to
Huyyay Ibn Akhtab which he had brought with him when he was banished
with Nadir tribe. the prophet asked Huyyay ‘s uncle ; what happened to
musk that your nephew brought with him from Nadir?’ he replied” the
wars and other expenses took it.” The prophet replied’ but he arrived very
recently, and there were more money than that…” so the prophet turned
the man over to Zubayr, who subjected him to some punishments.
Huyyay, in the meantime, was spotted hiding in the midst of some ruins. So
they went there and searched, and found the musk hidden in the ruins.
Based on the above event, there is a clear indication for punishing the
accused person based on presumption.
But the other scholars are saying: this Hadith however, concerns Jews who
had broken one agreement (by fighting) only to seek refuge in another one
which they also broke. How does this compare with inflicting pain on an
innocent Muslim whose guilty has not been established?.
Trabelsi said, Najim al-Hasan ibn Ziyad , and Sahnoun of Maalikis, and Ibn
Taymiyya and his student Ibn Han.
` TESTS OF ADMISSIBLITY OF CONFESSION
The manner in which confessions are being obtained by the police has
always been controversial, which has generated a lot of fur ore in judicial
cases of regarding admissibility of confessional statement.
However, some tests of admissibility were formulated early enough in
1858 by Parke B in the celebrated case of R v. Baldry37. The tests
represented the common law position on admissibility of confessions. He
stated thus „In order to render a confession admissible in evidence it must
be perfectly voluntary; and there is no doubt that any inducement in the
nature of promise or of a threat held out by a person in authority vitiates
confession‟.
 The above common law statement forms the local classicus in England. It
was restated in another sense years later by Lord Summer in Ibrahim v.
R38. Thus, there are replete with judicial pronouncements on the
conditions of admissibility which are as follows:
Inducement

Threat or Promises

Person in authority.

However, under Islamic law the test of admissibility is somehow

personalized, these are:
The component of confession (Arkan-ul-Iqrar).

Condition for confession (Shurut-al-Iqrar).

Indivisibility of confession.

Delay in confession.

Quantum of confession.

Prior complaint.

COMPONENTS OF CONFESSION IN ISLAMIC LAW(AIRKAN- UL-IQRAR)

The components of confession are the essential ingredients which must be
considered before a confession is admissible; these components are five
which must be explain as follows:
A-- THE FORMULA (SIGHA): The require formula for an admission is that it
must be direct and not based on a future happening. It should be in clear
and precise words without ambiguity. It may be oral or written.
Where an oral admission is made it could be reduced to writing because
writing is more secure and reliable. Without formalities, it could be
deposited in court to prove facts admitted without difficulty. Q2:283
ordered the believers to write down monetary transactions. The prophet
(PBUH) said it is better to write down wills as soon as you make up your
mind.
 Gesture by dumb person is enough as admission on the condition that
the gesture is well understood by some of the people in the audience but it
cannot be accepted in Hadd crimes(prescribed punishments.)
Silence generally does not constitute admission if the person can speak.
It is accepted as a sign of admission by a virgin woman in the acceptance of
her husband and the dowry.
B- PLACE OF ADMISSION (MAHALL-UL-IQRAR): An admission of crime
punishable by Hadd should be in court for it to be admissible it must further
be repeated in court. But for other crimes and dealings, admission done
outside the court can later be accepted in the court if not denied; it could
be established by evidence.

C- THE ACKNOWLEDGER: The person making the confession is refer to as

the acknowledger and he must have the following qualifications;
1. He must be adult

2. He should be sane
3. He should make the admission voluntarily without undue influence or
duress.

4. He should not be under restraint i.e. he should not be under a decree

made by court.

5The person making the confession must be conscious of what he is doing

and sober.

6. The person making admission must not be drunk.

7. The admission must be probable and reasonable.

8. There should be no suspicion in the acknowledgement

D- The person in whose favor admission is made must be ;
1. Known and specified: His identity must be established. He may be an
individual or legal person or bodies like a company e.t.c

2. He should be human being not an animal or mineral. However his

condition or mentality or maturity might be an admission to an embryo i.e.
a baby in the womb of his mother is valid provided a reasonable
explanation is given for that.

E- The subject matter of the acknowledgement;

1. The subject matter of the acknowledgement should be customarily of

used and value

2. It should be something lawful; and

3. It should be known however that a slight degree of ignorance is

inexcusable.

CONDITION FOR VALIDITY OF CONFESSION IN

ISLAMIC LAW (SHURUT-AL-IQRAR) The validity of confession is predicated
upon certain conditions, the fulfillment of which is absolutely necessary by
any person or group of people wishing to confess. The conditions are as
follows:
1. Sanity (Aql):.Sound mindedness is a significant fact for making an insane
has been vested with any responsibility morally or legally due to his mental
Incapacitation. The messenger of Allah (SAW) was reported to have said:
„Three persons are free from responsibility; a mentally imbalanced person
until he regain his senses, a minor until he becomes a major and a person
sleeping until he wakes up‟48 Accordingly, all these should not be held
legally responsible for their actions until they are relieved of the
circumstances created by such disabilities.
2 Maturity (Bulugh): As conveyed above, a minor has no responsibility,
even though under the law of contract a discerning minor, i.e. Al-
mumayyiz(the child that has attained age of discretion) is allowed a limited
leverage to transact business, subject to the endorsement of the child’s
guardian.

3 Consent (Ikhtiyar): Iqrar cannot be extracted under duress. It must be

pronounced out of one‟s free volition and consent and not which is
induced. A confession which is secured under compulsion, threat or
inducement or through other means where undue influence is employed
will be rendered invalid and legally ineffective.
 4 Legality of transaction (Ghayr Mahjur): An interdicted person is subject
matter. Any of the above can render a transaction illegal. Such a person is
therefore incompetent to make iqrar on his property or on a subject matter
of transaction which is illegal.

5-Freedom from agitation (Ghadab): A person making iqrar must not be in

a state of annoyance or agitation. He should jovial, in a good mood and
unperturbed. Anger can precipitate a lot of ugly things. The following
prophetic statement underscores the point. It has been reported that a
companion had solicited for exhortation from the prophet(SAW). The
messenger of Allah admonished him not to be angry, i.e. not to allow
himself to be carried away or to act under the influence of anger. That is
why a Qadi is enjoined not to conduct any court session while in a state of
agitation.

6 Conformity with customary practice: An iqrar must not be customarily

repugnant or sensibly incomprehensible. Whenever an iqrar is found to
have contained any of the above mentioned features, it has not satisfied its
conditions for acceptance. For instance where a deceased person makes
confession in favor of another person or where iqrar pertains to something
to which custom attaches no value, e.t c. such confession will be
customarily repugnant and therefore inadmissible.

INDIVISIBILITY OF CONFESSION Admission or confession may sometimes be

complete and entirely consistent with the claim; at other time it might be
qualified or compound. The qualified admission is that in which the
defendant concedes the claim of the plaintiff but attaches to his admission
an additional statement which alters its connotation. An example would be
for a person to admit his indebtedness but to add that his debt is not yet
paid. The compound admission on the other hand, is that in which a
defendant admits the original fact but adds to such fact another one closely
tied to it, as where a defendant admits a debt but add that he has paid it off
or that the plaintiff released him off it.
In such cases, the question is, should the defendant’s admission be
accepted, or should it be divided into two parts with the result that he
becomes bound by the debt and a duty devolves upon him to prove what
he added to the admission? There are two points in view in regard to this
question;
1 The first is that of Imam Hanafi and Maliki schools which accept the
division of the admission. According to this view the defendant becomes
bound by the debt and duty devolves him to prove what he added to the
admission.
2 The second view disapproves of the division of admission because it
considers it an indivisible whole.
Thus if a defendants admits that he owes a sum of money but payable at a
future date, he would not be made to pay it off before the date, because,
as, Ibn Qayyim al Jawziyah says; „The defendant has made his admission on
the basis of future maturity of the debt; to make him bound by it on any
other basis is to make him bound by that which he has not admitted
There is no consensus in the Shafii School regarding this rule. The Imam Al –
Ghazzali held that admission would no be divisible if the defendant
admitted the debt but claim that payment was only due on a future date,
while it would be divisible if he admitted the debt but claimed it
settlement.
DELAY IN CONFESSION The jurists concur that unlike evidence, delay in
confession does not affect its admissibility and confession after delay is
admissible like admission in civil rights.
It is based on the reasoning that delay in evidence amounts to make
malice and suspicion where there is no possibility in confession because no
sensible person knows what is harmful to him and thus one is not
considered suspicious in what he confesses to have committed.
But according to Abu Hanifah and Abu Yusuf, delay in the confession of
drinking wine nullifies it and delay in it is to be after the ceasing of the smell
of wine from the mouth of the confessor. So if a person confesses to have
drunk wine after passing the smell of wine, his confession is not valid50.

QUANTUM OF CONFESSION
According Imam Abu Hanifah and Imam Ahmad, it is necessary in the case
of zina to have four separate confessions as four witnesses are necessary
for its proof by testimony. They based their opinion on the tradition of the
Holy prophet(SAW) related on the authority of Abu Hurairah that when
Maiz came to the Holy prophet and confessed his guilt four times, the
prophet(PBUH) ordered to stone him to death.
 It is further supported with a hadith related on the issue of the Ghamid
woman who confessed four times that she had committed zina. The
prophet ordered that as she was pregnant she would be punished when
she gives birth to the child and the child is enough to carry on as without
mother.
According to Imam Maliki and Imam Shafii only one time confession is
sufficient in all offences including zina because confession is an information
and it does not need repetition.
They based their view on the hadith of the Holy prophet where he ordered
Unais to go to the woman whose servant has confessed to have committed
zina with and stone her to death if she confesses. The prophet (SAW) did
not mention four times this hadith and thus only one time confession is
considered sufficient.
It must be noted that, Imam Hanafi strictly require confession to be
repeated in four different appearances even though within the same
sitting.
PRIOR COMPLAINT
It is necessary for the validity of confession and admission in the rights
and the offences regarding human rights such Qisas and theft that there
must be a prior complaint against the accused or the defendant in a court
by the victim or his heirs or representatives.
It is based on the reasoning that when the victim or his heirs do not
complain or put any claim against the accused or the defendant, it would
be presumed that they might have pardoned the accused or the defendant
and thus no proof is required. The prophet (PBUH) said “Pardon Hudud
among you”. If a person confesses to have committed theft, Hadd will not
be implemented on him until the victim files a complaint against him.

49 Bassionumi,M chief,The Islamic Crimiinal Justice System pg 50. 50 Ibn Hunam, Sharh Fath al-Qadar, vol
IV, pg 161.
51 Al-zarqani, Sharh al-muwatta of Imam Maliki, vol VIII, pg 81
52 Al-Marghinani,Ali,al Hidayah (English Translation by C. Hamilton)Book VIII,Chapter 1,pg117.
 The jurists however, concur that no prior complaint is necessary for the
confession in the offences relating to the pure rights of Allah such as zina.
It is based on the reason that it is the duty upon every Muslim to save-
guard the rights of Allah and whenever he violated any right of Allah, he
should confess the offence before the court irrespective of whether the
victim had filed any complaint against him or not.
This is based on the practice of Holy prophet that he implemented hadd
on Maiz Ibn Malik Aslami on his confession without any complaint from the
opposite party.
But according to Abu Yusuf, Malik, Abu Sor and Ibnul Munzir no prior
complaint is required for the validity of the confession and admission in
criminal and civil matters, so, if a person confesses to have committed theft
from another person, Hadd will be implemented on him though there has
been no complaint filed against him prior to his confession in the court.

They argued that the order of theft is generally in the Holy Qur‟an and not
conditioned with prior claim in court. More over when the offence is
proved then its punishment must be implemented and must be removed
for want of complaint.
CONFESSION MADE AFTER THREAT HAVE CEASED TO EXIST
Where the impression created by threat or inducement has ceased, then
the confessional statement would be admissible.
This mean that if a confession is made after the impression caused by
inducement, threat or promise has, in the opinion of the court, been fully
removed, it is relevant. In such a case, the confession cannot be regarded
as caused by that inducement. Section 30 of the Evidence Act provides: „If
such a confession as is referred to in section 29 of this Act is made after the
impression caused by any such inducement, threat or promise has, in the
opinion of the court, been fully removed, it is relevant‟. The rationale is
that if the threat or inducement under which the first confession was
obtained still persisted as at the time of the taking of the second
confession, then the latter would also be inadmissible save the judge
carefully directed himself as to the admissibility of the first statement that
the threat or inducement had dissipated at the time of the second
confession.
53 Ibn Qudamah,al mughni,vol IX , pg299
CONFESSION IMPLICATING A CO-ACCUSED

Section 27(3) of the Evidence Act provides that where more persons than
one are charged jointly in a criminal offence and a confession made by one
of such persons in the presence of one or more of the other persons so
charged, is given in evidence, the court, or a jury where the trial is one with
a jury, shall not take such statement into consideration as against such
other persons in whose presence it was made unless he adopted the said
statement by words or conduct and this is exact position made by Islamic
law. This section was considered by the Supreme Court in Ozaki v State,59.

According to Islamic law a confession is a proof against the confessor only

and it is not a proof against his co-accused. Thus, under Islamic law the
evidence of an accomplice is not admissible against his co-accused unless it
is corroborated by independent evidence. It is based on the following
hadith of the Holy prophet (PBUH).
It has been related on the authority of Sa‟ad al Saidi that a man came to
the Holy prophet (PBUH) and he confessed that he had committed adultery
with a woman whom he named. The prophet sent for the woman and
enquired from her about that. She denied the allegation. The prophet
(SAW) punished the man and acquitted the woman.
It is further based on the ground that when a co-accused confesses that
he has committed the alleged offence, he becomes fasiq (wicked person)
and does not remain credible and as such his evidence is not admissible
against his co accused.
All the jurists except Imam Hanafi disagree on this principle of inflicting
punishment on the confessed accused where the other denies the
allegation.

He was of the opinion that where one of them denied the act both of them
will not be punished because the denial of the other creates doubt in the
confession of the first party.
58 (1964)1 ALL NLR 233
59 (1990)1 NWLR (pt 124)92 SC
 TENDER OF PARDON TO ACCOMPLICE
In contemporary law there two terms; one is accomplice and the other is
approver. Sometimes these terms appear to have been used
interchangeably.
The distinction, however, remains that an approver is always an
accomplice where as an accomplice becomes an approver when he has
been tendered pardon or granted concession on the condition that he will
reveal the truth and not hide anything in relation to the offence which he
and the other accused are alleged to have committed. If pardon is tendered
to an accomplice and he is made approver on the condition to disclose all
facts of the offence and the parts by him and his co-accused, there are two
things to be determined on Islamic point of view:
1. Whether tendering of pardon is permissible or not;

2.Whether his evidence against his co-accused is admissible or not.

So far, the tender of pardon to an approver is concerned; it is not valid in an
offence liable to hadd because hadd being right of Allah cannot be remitted
neither by the state nor victim and his heir/guardian.
But if the victim tenders pardon to an accomplice in an offence liable to
qisas, diyat, hurt or restoration of the stolen property e.t.c and after he
confesses to and identified his co-accused and circumstances of the
offence, the victim or his heirs can pardon him, but the state cannot pardon
an accomplice in an offences liable to qisas, diyat, hurt, restoration of
property except with the consent of the victim or his heirs because they
relate to the rights of human beings. However, tender of pardon to an
approver in an offence liable to ta‟zir is permissible if it is required in the
larger public interest.
In this connection Allamah Ibn Abideen writes:
„The difference between hadd and ta‟zir is that unlike ta‟zir, hadd can
neither be remitted by the recommendation nor can the state remits it and
that it is also removed by the pass of time‟
He further writes that tendering pardon to an approver in matter of
ta‟zir is only permissible when such ta‟zir relates to the rights of Allah and
thus it will not be permissible if ta‟zir relates to the rights of individuals.
64Bahnusi, Ahmad Fathi, Nazriyya al- Isbat fi al Fiqh al jinai al islami, pg 170
 The offender in an offence relating to the rights of individuals cannot be
pardoned by anyone unless the victim himself pardons him. So far, the
evidence of an approver against his co-accused is concerned it is not
admissible in Islamic law unless it is corroborated with other evidence.
The evidence of an approver where along with other evidence is found to
be satisfactory, it should be sufficient to convict and sentence an offender
in ta‟zir.
This is based on the reason that when an approver confesses his offence,
he becomes a criminal and a wicked person and does not remain credible
and as such his evidence is not admissible.
RETRACTION FROM CONFESSION
Retraction from confession is the principle of law that is only acceptable in
Islamic law. In hudud offences, it is admissible to retract confession before
or after the announcement of the judgment or during the execution of the
punishment and it nullifies the Hadd punishment.
But retraction of confession in matters relating to the rights of individuals
such as qisas and diyat is not admissible. Similarly, retraction of confession
in an offence liable for ta‟zir is also not admissible.
Retraction from admission is not admissible in all civil matters once a
person makes an admission, he shall be liable for the right created there in
even if he retracts it.
According to some jurists like Hasan, Saeed Ibn Jubair and Ibn Abu Laila
retraction from confession is not admissible in any offence whether it
relates to the rights of Allah or rights of individualsBut according to Imam
Shafii mere running away during the execution of punishment is not
retraction unless he expressly retracted it. And the execution of the
punishment will be stopped by his running away.
65 Ibn Al- Abidin, Radd al Muhtar, vol III, pg 194.

70 Audah, Abdul Qadir, al tashri,

and when the offence is proved by valid
confession.confession, the confessor must be convicted even though he
retracts the
According to Imam Abu Hanifaah, Imam Malik and Imam Ahmad mere
running away during the execution of punishment amounts to retraction
from confession irrespective of whether or not he expressly retracted the
confession.
‟a al jinai al islami,vol II,pg 435. 71Bahnusi Ahmad Fathi, Nazriyyah al Isbat, pg158.
 This is based on the tradition of the Holy prophet(PBUH) related on the
authority of Jabir Ibn Abdullah that when they started stoning Maiz Ibn
Malik Aslami he ran away and said “O people! Return me to the prophet.
My people deceived me and killed me”. But we stoned him to death.
Later on when we informed the prophet of his running away, he said
“why didn‟t you leave him and bring him to me”. In another version of this
hadith, the prophet said “why didn’t you leave him so that he might have
retracted and get rid of the punishment”.
It may be mentioned that some Malikis have conditioned the
admissibility of retraction with sound ground.
In this connection Al-Qarafi writes in his book Al-Zhakhirah, “Retraction
from confession in the rights of Allah such as theft drinking wine is
admissible provided there is a sound ground for that”. If there is no ground,
then there is difference opinion in its admissibility. If it relates to both
rights of Allah and as well as individuals like confession of theft, the right of
the person is due on him, whether he offers some confession of being
muhsan (married) he will not be stoned to death but he will be whipped
100 stripes. If an offence is proved both by evidence as well as confession
and then the accused retracts the confession before judgment, there is
consensus of opinion among the Hanafi jurists that retraction of evidence
nullifies the evidence and thus retraction at this stage will remove hadd
from the accused. But if he retracts the confession after judgment which
was based on evidence then according to Abu Yusuf, hadd will not be
implemented on him because the evidence is only effective when there is
no confession at any stage.
But according to Muhammed had will be implemented on him in this case
because the offence is proved by the evidence.

72 Ibn Qudamah ,al-mughni, vol X,pgs 173-185.