يَا أَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ ذَوَا عَدْلٍ مِنْكُمْ أَوْ آخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنْتُمْ ضَرَبْتُمْ فِي الْأَرْضِ فَأَصَابَتْكُمْ مُصِيبَةُ الْمَوْتِ ۚ تَحْبِسُونَهُمَا مِنْ بَعْدِ الصَّلَاةِ فَيُقْسِمَانِ بِاللَّهِ إِنِ ارْتَبْتُمْ لَا نَشْتَرِي بِهِ ثَمَنًا وَلَوْ كَانَ ذَا قُرْبَىٰ ۙ وَلَا نَكْتُمُ شَهَادَةَ اللَّهِ إِنَّا إِذًا لَمِنَ الْآثِمِينَ
O you who have believed, testimony [should be taken] among you when death approaches one of you at the time of bequest - [that of] two just men from among you or two others from outside if you are traveling through the land and the disaster of death should strike you. Detain them after the prayer and let them both swear by Allah if you doubt [their testimony, saying], "We will not exchange our oath for a price, even if he should be a near relative, and we will not withhold the testimony of Allah. Indeed, we would then be of the sinful."
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(O ye who believe! Let there be witnesses between you…) [5:106]. Abu Sa'id ibn Abi Bakr al-Razi informedus> Abu 'Amr ibn Hamdan> Abu Ya'la> al-Harith ibn Shurayh> Yahya ibn Zakariyya ibn Abi Za'idah>Muhammad ibn Abu'l-Qasim> 'Abd al-Malik ibn Sa'id ibn Jubayr> his father> Ibn 'Abbas who said: “Tamimal-Dari and 'Adiyy ibn Badda' used to come to Mecca. On one occasion, a man from Quraysh, from BanuSahm, travelled with the two of them. However, this man died in a land where there was not a single Muslimand he had to entrust them with his belongings, with the understanding that they were to be given to hisfamily. When the two of them arrived, they gave his belongings to his family but kept to themselves a silverbowl adorned with layers of gold. They denied having seen this bowl when they were asked about it. Thetwo men were taken to the Prophet, Allah bless him and give him peace, who asked them to swear that theyneither saw the bowl nor did they keep it. When they swore, he let them go. Later this bowl was found withsome of the people of Mecca who said that they had bought it from Tamim al-Dari and 'Adiyy ibn Badda'.The heirs of the man from Banu Sahm took the bowl and two men from among them swore that the bowlbelonged to their man, that their testimony is truer than the testimony of the other two men and that theydid not transgress. These two verses were revealed about this event (O ye who believe! Let there bewitnesses between you) up to the end”.
يِـأَيُّهَا الَّذِينَ ءَامَنُواْ شَهَـدَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ ذَوَا عَدْلٍ مِّنْكُمْ أَوْ ءَاخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنتُمْ ضَرَبْتُمْ فِى الاٌّرْضِ فَأَصَابَتْكُم مُّصِيبَةُ الْمَوْتِ تَحْبِسُونَهُمَا مِن بَعْدِ الصَّلوةِ فَيُقْسِمَانِ بِاللَّهِ إِنِ ارْتَبْتُمْ لاَ نَشْتَرِى بِهِ ثَمَناً وَلَوْ كَانَ ذَا قُرْبَى وَلاَ نَكْتُمُ شَهَـدَةَ اللَّهِ إِنَّآ إِذَاً لَّمِنَ الاٌّثِمِينَ - فَإِنْ عُثِرَ عَلَى أَنَّهُمَا اسْتَحَقَّآ إِثْماً فَآخَرَانِ يِقُومَانُ مَقَامَهُمَا مِنَ الَّذِينَ اسْتَحَقَّ عَلَيْهِمُ الاٌّوْلَيَانِ فَيُقْسِمَانِ بِاللَّهِ لَشَهَـدَتُنَا أَحَقُّ مِن شَهَـدَتِهِمَا وَمَا اعْتَدَيْنَآ إِنَّا إِذاً لَّمِنَ الظَّـلِمِينَ - ذلِكَ أَدْنَى أَن يَأْتُواْ بِالشَّهَـدَةِ عَلَى وَجْهِهَآ أَوْ يَخَـفُواْ أَن تُرَدَّ أَيْمَـنٌ بَعْدَ أَيْمَـنِهِمْ وَاتَّقُوا اللَّهَ وَاسْمَعُواْ وَاللَّهُ لاَ يَهْدِى الْقَوْمَ الْفَـسِقِينَ
(106. O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two just men of your own folk or two others from outside, if you are traveling through the land and the calamity of death befalls you. Detain them both after the Salah (the prayer), (then) if you are in doubt (about their truthfulness), let them both swear by Allah (saying): "We wish not for any worldly gain in this, even though he (the beneficiary) be our near relative. We shall not hide the testimony of Allah, for then indeed we should be of the sinful.'')
(107. If it then becomes known that these two had been guilty of sin, let two others stand forth in their places, nearest in kin from among those who claim a lawful right. Let them swear by Allah (saying): "We affirm that our testimony is truer than that of both of them, and that we have not trespassed (the truth), for then indeed we should be of the wrongdoers.'')
(108. That should make it closer (to the fact) that their testimony would be in its true nature and shape, or else they would fear that (other) oaths would be admitted after their oaths. And have Taqwa of Allah and listen (with obedience to Him). And Allah guides not the rebellious people.)
This honorable Ayah contains a glorious ruling from Allah. Allah's statement,
يِـأَيُّهَا الَّذِينَ ءَامَنُواْ شَهَـدَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ
(O you who believe! When death approaches any of you, and you make a bequest, then take the testimony of two...) meaning that there should be two witnesses in such cases,
ذَوَا عَدْلٍ
(just men...) thus, describing them as just,
(of your own folk) Muslims.
أَوْ ءَاخَرَانِ مِنْ غَيْرِكُمْ
(or two others from outside) non-Muslims, meaning the People of the Book, according to Ibn `Abbas as Ibn Abi Hatim recorded. Allah said next,
إِنْ أَنتُمْ ضَرَبْتُمْ فِى الاٌّرْضِ
(if you are traveling through the land) on a journey,
فَأَصَابَتْكُم مُّصِيبَةُ الْمَوْتِ
(and the calamity of death befalls you.) These are two conditions that permit using non-Muslims from among the Dhimmis for witnesses when there are no Muslims present: When one is traveling and needs to write a will, as Sharih Al-Qadi said. Ibn Jarir recorded that Sharih said, "The witness of the Jews and Christians is not allowed except while traveling, and even then only to witness the dictation of the will.'' Allah's statement,
تَحْبِسُونَهُمَا مِن بَعْدِ الصَّلوةِ
(Detain them both after the Salah (the prayer),) refers to the `Asr prayer, according to Al-`Awfi who reported it from Ibn `Abbas. This is the same explanation reported from Sa`id bin Jubayr, Ibrahim An-Nakha`i, Qatadah, `Ikrimah and Muhammad bin Sirin. As for Az-Zuhri, he said that they are detained after Muslim prayer (i.e., in congregation). Therefore, these two witnesses will be detained after a congregational prayer,
فَيُقْسِمَانِ بِاللَّهِ إِنِ ارْتَبْتُمْ
(let them both swear by Allah if you are in doubt.) meaning, if you are in doubt that they might have committed treachery or theft, then they should swear by Allah,
لاَ نَشْتَرِى بِهِ
(We wish not in this) in our vows, according to Muqatil bin Hayyan,
(for any worldly gain) of this soon to end life,
وَلَوْ كَانَ ذَا قُرْبَى
(even though he be our near relative.) meaning, if the beneficiary be our near relative, we will still not compromise on the truth.
وَلاَ نَكْتُمُ شَهَـدَةَ اللَّهِ
(We shall not hide the testimony of Allah,) thus stating that the testimony is Allah's, as a way of respecting it and valuing its significance,
إِنَّآ إِذَاً لَّمِنَ الاٌّثِمِينَ
(for then indeed we should be of the sinful.) if we distort the testimony, change, alter or hide it entirely. Allah said next,
فَإِنْ عُثِرَ عَلَى أَنَّهُمَا اسْتَحَقَّآ إِثْماً
(If it then becomes known that these two had been guilty of sin...) if the two witnesses were found to have cheated or stolen from the money that the will is being written about,
يِقُومَانُ مَقَامَهُمَا مِنَ الَّذِينَ اسْتَحَقَّ عَلَيْهِمُ الاٌّوْلَيَانِ
(let two others stand forth in their places, nearest in kin from among those who claim a lawful right.) This Ayah indicates that if the two witnesses were found to have committed treachery, then two of the nearest rightful inheritors should stand for witness in their place,
فَيُقْسِمَانِ بِاللَّهِ لَشَهَـدَتُنَا أَحَقُّ مِن شَهَـدَتِهِمَا
(Let them swear by Allah (saying): "We affirm that our testimony is truer than that of both of them...'') Meaning, our testimony that they have cheated is more truthful than the testimony that they have offered,
وَمَا اعْتَدَيْنَآ
(and that we have not trespassed (the truth),) when we accused them of treachery,
إِنَّا إِذاً لَّمِنَ الظَّـلِمِينَ
(for then indeed we should be of the wrongdoers.) if we had lied about them. This is the oath of the heirs, and preference is to be given to their saying. Just as in the case with the oath of relative of a murdered person if he attempts to tarnish the case of the murdered person. So his family takes an oath in defense of his honor. This is discussed in the studies of the oaths in the books of Ahkam. Allah's statement,
ذلِكَ أَدْنَى أَن يَأْتُواْ بِالشَّهَـدَةِ عَلَى وَجْهِهَآ
(That should make it closer (to the fact) that their testimony would be in its true nature and shape (and thus accepted),) means, the ruling requiring the two Dhimmi witnesses to swear, if there is a doubt that they were not truthful, might compel them to admit to the testimony in its true form. Allah's statement,
أَوْ يَخَـفُواْ أَن تُرَدَّ أَيْمَـنٌ بَعْدَ أَيْمَـنِهِمْ
(or else they would fear that (other) oaths would be admitted after their oaths.) means, requiring them to swear by Allah might encourage them to admit to the true testimony because they respect swearing by Allah and they glorify and revere Him. They also fear exposure if the heirs of the deceased are required to swear instead of them. In this case, the heirs would swear and earn the rightful inheritance that the two witnesses failed to declare. This is why Allah said,
أَوْ يَخَـفُواْ أَن تُرَدَّ أَيْمَـنٌ بَعْدَ أَيْمَـنِهِمْ
(or else they would fear that (other) oaths would be admitted after their oaths.), then,
وَاتَّقُواْ اللَّهَ
(And have Taqwa of Allah) in all of your affairs,
(and listen.) and obey,
وَاللَّهُ لاَ يَهْدِى الْقَوْمَ الْفَـسِقِينَ
(And Allah guides not the rebellious people.) who do not obey Him or follow His Law.
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