Burden of proof of hirabah?

Question

As far as I know, hirabah is a hadd offense, and so I expect that it comes with a specific burden of proof. I'm unable to find sources that explain that burden of proof

Question: what burden of proof do the different madhahib require for hirabah?

Answer 1

The burden of proof for hirābah is not a matter that has a difference of opinions among scholars. Proof can be established through:

• Al-Iqrār (Arabic: الإقرار): Confession by the person committing hirābah, or
• Al-Bayyinah (Arabic: البينة): The testimony of two witnesses provided certain conditions are met.

The conditions for the witnesses are that they:

• Be of sound mind
• Be among the criminals, victims, or witnesses through presence
• Testify only against others (witnesses cannot testify against themselves, as this would be iqrār).

The hadd of hirābah is invalidated in the following cases (in which case ta'zīr takes place instead based on the judge's view of the case):

• Having only one witness
• Having one mail witness and one female witness
• Having witnesses with disabilities (e.g., one deaf and one blind are considered the same as one witness)
• The criminal admits the crime (iqrār), then retracts the confession with only one witness testifying to the crime.

The burden of providing proof is on the plaintiff (prosecutor or victim).

The burden of passing the judgment is on the judge, and the judge has the freedom to incriminate as hirābah if other alibis prove the crime rule even in the absence of two qualified witnesses (e.g., videos through surveillance cameras, DNA tests, etc.). Tne difference is:

• In the presence of two witnesses, the judge can only rule with the prescribed hadd in fiqh law, and no one has the right to offer pardon to the accused, and there is no appeal mechanism.
• In the absence of two witnesses, if the act of hirābah can be proven through other means, the judge has a range of punishments that he can choose from, and the Muslim ruler has the right to pardon the accused upon appeal.

Note that in the absence of two witnesses, if the act of hirābah cannot be proven beyond a shadow of doubt, the accused is declared innocent and set free.

All references are in Arabic only, though:

• Hanafi: Bada'i' as-Sana'i' (Arabic: بدائع الصنائع في ترتيب الشرائع) by Al-Kasani, Vol. 7, pp. 93
• Maliki: Sharh Az-Zurqani (Arabic: شرح الزرقاني على مختصر خليل وحاشية البناني) by Abd-al-Baqi al-Zurqani, Vol. 8, the gloss of pp. 191-193
• Shafi'i: Asna al-Matālibb (Arabic: أسنى المطالب في شرح روض الطالب) by Zakariyya al-Ansari, Vol. 4, pp. 158
• Hanbali: Al-Mughni (Arabic: المغني لابن قدامة) by Ibn Qudamah, multiple pages by topic, e.g., Vol. 10, pp. 227