Question: The following fatwa appears on darulifta deoband website. Is it correct?
Question: Can we treat a video or photo as an evidence against or for any person in order to prove him guilty or not? If so, then video, photo must be allowed. As you know that videos, photos and many other things preserves events in a real time i.e. when it happens. So, to know the truth these techniques are extremely helpful to deliver the justice. Islam wants justice to be revealed at any cost and there must not be even an iota of injustice to anybody. In fact these techniques help us to know the truth and a person can not lie if he or she knows that his or her video or photo is taken and can be produced in a court. Like for example I have a shop which has video camera in it, so if somebody attempts to thief and his activities are captured by camera. So, is it allowed in Islam to produce that as an evidence against the thief in a court? If it is allowed then photography, videography must be allowed in Islam if not then why?
Answer: Generally, photography and picture making is unlawful and haram, Hadith sternly warns about it.
إن من أشد الناس عذابا يوم القيامة المصورون (البخارى).
However, in the light of other provisions, the Ulama allowed it at the time of need, such as for Identity Card, PAN card, Aadhar Card and other documents. Allama Sarkhasi, may Allah have mercy upon him, writes:
وإن تحققت الحاجة له إلى استعمال السلاح الذي فيه تمثال فلا بأس باستعماله (شرح السير الكبير 1/463)
Hence it shall be allowed to make video or take photograph of the activity of theft, violence, incident or any other event out of need for justice (i.e. it is feared that if it is not done then someone’s right shall be lost). However, it shall be unlawful to make video or take photograph unnecessarily and for show in each case.
ANSWER [Majlisul Ulama]
The fatwa of Darul Uloom Deoband on the permissibility of video and the like as evidence to prove guilt and gain a conviction is incorrect. It is in fact injustice in terms of the Shariah because a conviction is gained without Shar’i evidence. The honourable Mufti did not apply his mind correctly. Whilst a haraam act could be availed of in dire need, the need in this case is not dire.
Furthermore, this type of ‘evidence’ abrogates the Shariah’s explicit rule of evidence which stipulates shahaadat (testimony by uprighteous human beings). Pictures regardless of the method of production can be doctored to implicate innocent people. All ways of securing evidence by technological means are not valid in an Islamic Court.
Justice ‘at any cost’ as the questioner says, is not justice in Islamic terms. Justice is justice as ordained by Allah Ta’ala. Three pious, truthful males witnessed a couple committing fornication. After they reported the crime, a fourth pious male could not be found to testify. All three will be flogged 80 lashes each, and the Qur’aan brands them as ‘liars’, yet they have 100% certitude regarding the crime they had witnessed. In addition they had videoed the entire act of zina in progress.
A pious man having personally witnessed a theft, reports the thief. Since only one person testifies, the thief cannot be convicted although the witness has 100% certitude regarding the crime. If a trader testifies in an Islamic court that the thief has stolen his property and he presents video pictures as evidence, the Islamic court will not convict the ‘thief’ regardless of the trader’s right having been usurped. Two pious male witnesses are incumbent to secure a conviction. Thus, the honourable Mufti of Deoband has grievously erred in his view which elevates video to shahaadat, and which abrogates the Shariah’s law of evidence based on Sareeh Nass.
The text of Allaamah Sarakhsi (Rahmatullah alayh) does not support the opinion of the honourable Mufti. This basis for the Mufti Sahib’s view is erroneous. The example of a sword with pictures engraved on it, is not an issue of shahaadat. It does not interfere with any law of the Shariah. On the contrary, it is based on the principle of dire needs legalize prohibitions. This principle is a temporary concession applicable to a case of dire need. It does not halaalize the haraam for all time. It does not provide a blanket permission for all and sundry to indulge in the haraam act which is legalized temporarily for a specific case.
The reasoning of Darul Uloom on the basis of what Allaamah Sarakhsi says is baseless. The issue stated by Allaamah Sarakhsi does not apply to the utilization of haraam pictography for the purpose of evidence in a court. Using a sword on which a picture is engraved will be permissible if there is no other sword / weapon available with which to fight the enemy.
Assuming there is a dire need for camera surveillance, then whilst such surveillance will be permissible, the pictures will not be evidence in an Islamic court and a conviction will not be achieved by it.